t 


a^«  •*  ■ 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


GIFT  OF 

James  R«  Hutter 
«U7  Bus.  Adm. 


cS  -^^  <ZAT7JU& 


LEGAL^AJNTD    POLITICAL 


HEEMENEUTICS, 


PRINCIPLES   OF   INTERPRETATION   AND   CONSTRUCTION 
LN    LAW   AND    POLITICS, 

WITH  REMARKS  ON   PRECEDENTS  AND   AUTHORITIES. 


By    FRANCIS    LIEBER,    LL.D., 

Author  of  "  Manual  of  Political  Ethics,"  "Civil  Liberty  and  Self-  Government."  etc. 


Third  Edition,  with  the  Author's  Last  Corrections  and 
Additions,  and  Notes  by 

WILLIAM    G.    HAMMOND, 

Professor  of  Law  in  the  Iowa  State  University. 


ST.    LOUIS. 

F.  II.  THOMAS    AND    COMPANY. 

18  8  0. 


Entered  according  to  Act  of  Congress,  in  the  year  18S0,  by 

MATILDA  LIEBER, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


T 

mo 


St.  Louis:   Press  of  G.  1  Jones  and  Company. 


PREFACE    TO    THE    THIRD    EDITION. 


The  second  edition  of  the  Hermcneutics  was  published  in  1839,  and  has 
now  been  out  of  print  for  almost  forty  years.  In  18G0  Dr.  Lieber  carefully 
revised  it,  and  made  additions  to  both  text  and  notes,  expecting  to  pub- 
lish a  third  edition,  with  a  second  part,  of  "Special  Hermeneutics,  or 
Legal  Rules  of  Interpretation  and  Construction,"  by  an  eminent  member 
of  the  New  York  Bar,  Mr.  William  Curtis  Noyes.  This  plan,  however, 
was  not  carried  out,  and  Mr.  Noyes  died  December  25,  1863,  without  hav- 
ing written  his  proposed  part.  The  text  of  the  present  edition,  and  Dr. 
Lieber's  own  notes,  have  been  printed  with  the  utmost  exactness  from  the 
copy  then  prepared  by  him.  The  notes  of  the  present  editor  will  be  readily 
distinguished. 

Dr.  Lieber's  larger  works  had  already  been  edited,  after  his  death,, 
by  President  Woolsey,  before  this  edition  was  undertaken,  at  the  request 
of  the  author's  family.  The  diffidence  with  which  the  editor  accepted  such 
an  invitation  has  increased  rather  than  diminished  as  his  work  advanced. 
No  editing,  probably,  could  give  to  a  new  edition  the  same  relative  im- 
portance which  the  Hermeneutics  enjoyed  at  its  first  appearance.  It  then 
opened  to  the  American  public  a  new  field  of  thought,  and  was  welcomed 
with  great  praise  by  such  distinguished  friends  of  the  author  as  Chan- 
cellor Kent  and  Judge  Story.  Other  writers  availed  themselves  of  its 
guidance,  and  its  contents  soon  became  the  common  property  of  our 
recent  writers  of  law-books  and  judicial  opinions.  If  the  distinguished 
author  had  lived  to  publish  the  present  edition,  the  work  would  no  doubt 
have  been  largely  rewritten,  and  made  to  till  the  same  place  in  the  eyes  of 
the  present  generation  that  the  first  and  second  editions  had  in  those  of 
their  fathers.  It  would  be  presumption  for  an  editor  to  expect  to  do  this, 
under  any  circumstances ;  and  the  expressed  wish  of  Dr.  Lieber's  family 
and  personal  friends,  that  no  additions  of  any  kind  should  be  made  to  his 
text,  has  been  conclusive  against  any  such  attempt. 

Under  this  restriction,  two  courses  were  open  to  the  editor:  One  was 

<jii) 


IV  PREFACE    TO    THIRD    EDITION. 

to  add,  in  the  form  of  detached  notes,  the  practical  rules  of  interpretation 
employed  by  the  courts,  and  a  collection  of  the  cases  illustrating  them, 
substantially  like  Mr.  Noyes's  proposed  second  part  of  the  text.  The 
editor  had  not  only  given  this  plan  full  consideration,  but  had  prepared  a 
large  part  of  the  material  for  it,  —  having  examined  and  made  notes  of  more 
than  1,000  cases,  —  when  he  became  convinced  that  it  was  not  advisable. 
To  carry  it  out  with  any  degree  of  completeness  would  have  more  than 
doubled  the  size  of  the  book,  and  introduced  a  gross  disproportion  be- 
tween the  text  and  notes ;  to  say  nothing  of  the  fact  that  a  large  part  of 
such  notes  would  have  been  foreign  to  and  unconnected  with  any  thing  in 
Dr.  Lieber's  text.  But  if  such  notes  were  not  complete,  and  gave  only  a 
selection  of  the  rules  and  cases  upon  the  topic,  they  would  not  have 
answered  the  purpose  of  the  practitioner,  and  therefore  would  have 
fulfilled  neither  one  purpose  nor  the  other. 

The  other  course,  and  the  one  finally  adopted,  was  to  limit  the  editor's 
notes  and  additions  strictly  to  the  theory  of  hermeneutics,  and  the  prin- 
ciples upon  which  interpretation  and  construction  must  always  proceed. 
These  formed  the  subject  of  Dr.  Lieber's  work,  as  his  title-page  shows: 
«ven  the  abundant  illustrations  which  flowed  from  a  mind  so  richly  stored 
with  historical  and  political  learning  are  always  kept  subordinate  to  the 
development  of  these  principles.     In  his  foot-notes  the  editor  has  added 
very  sparingly  to  these  illustrations,  since  the  text  was  so  amply  provided 
with  them,  and  mostly  from  events  which  have  happened  since  the  author's 
last  revision,  or  from  legal  reports  which  did  not  come  under  his  cogni- 
zance.    In  the  other  foot-notes,  and  in  the  series  of  longer  notes  which 
form  the  appendix,  it  has  been  the  editor's  effort  to  determine,  as  exactly 
as  possible,  the  true  province  of  legal  interpretation,  and  the  conditions 
which  must  always  govern  its  processes,  under  any  system  of  positive  law 
whatever,  so  long  as  the  human  mind  remains  what  it  is.     Even  the  his- 
torical notes  are  introduced  chiefly  for  this  end, —a  long  experience  as  a 
teacher  of  law  having  impressed  on  him  no  truth  more  firmly  than  this : 
i  -that  the  surest,  and,  on  the  whole,  the  easiest  method  of  learning  the  true 
nature  and  contents  of  any  legal,  political,  or  ethical  doctrine,  is  to  trace 
carefully  the  successive  steps  by  which  that  doctrine  has  been  formed  in 
time.   (Several  of  the  most  important  topics  of  interpretation  are  discussed 
in  separate  notes,  but  all  of  them,  it  is  hoped,  throw  light  on  the  main 
question,  as  stated  above,  and  come  within  the  proper  limits  of  editorial 
duty,  as  pertinent  to  the  main  work.     They  make,  of  course,  no  pretence 


PREFACE    TO    THIRD    EDITION.  v 

to  an  exhaustive  or  systematic  treatraenl  of  the  subject,  bal  maj 
contributions  of  materia]  for  such  a  treatment  by  some  one  else  hereafter. 

The  editor  makes  no  apology  for  the  large  amount  of  quotation  embodied 
in  them,  if  the  matter  quoted  seems  to  others,  as  it  does  to  him,  appro- 
priate and  valuable.  It  has  been  taken  chiefly  from  the  civilians  and  other 
foreign  writers,  because  t hoe  are  less  accessible  to  most  American  law- 
yers. Our  own  treatises  and  reports  have  been  little  used,  partly  because 
they  were  familiar  to  the  great  majority  of  those  who  will  probably  read 
this  book,  and  partly  for  the  reason  already  given  in  regard  to  the  choice 
of  methods. 

For  the  long  delay  in  the  appearance  of  this  edition,  the  editor  is  alone 
responsible.  His  labor  upon  it  has  been  performed  in  the  scanty  intervals 
of  other  very  constant  and  laborious  dut.;es;  and  there  has  been  much 
more  labor  and  study  given  to  it  than  may  be  inferred  from  the  meagre 
results  in  print.  He  only  regrets,  in  closing  it,  however,  that  those  results 
are  not  more  worthy  of  the  distinguished  name  with  which  he  has  the 
honor  of  associating  his  own  upon  a  title-page. 

W.  G.  II. 

Law  Department,  State  University  of  Iowa. 
March,  1S80. 


AUTHOR'S  PREFACE  TO  THE  SECOND  EDITION. 


*  One  of  the  first  articles  which  I  read  after  my  landing  at  New  York, 
now  nearly  twelve  years  ago,  was  in  a  paper  opposed  to  the  administration 
of  Mr.  Adams.     The  construction  of  the  Constitution  formed  one  of  the 
points  on  which  the  writer  founded  his  objections  to  the  president  and 
his  party.    The  subject,  as  a  distinction  of  political  men  and  measures, 
was  new  to  me,  as  political  construction  in  this  aspect,  is  peculiarly 
American;  for,  here,  the  idea  of  written  constitutions,  of  which  it  is  a 
consequence,  was  first  realized  permanently  and  on  a  large  scale,  although 
they  have  existed  at  earlier  dates.     My  attention  was  naturally  attracted 
by  this  subject,  and  the  more  attention  I  paid  to  the  whole  political 
system,  in  which  I  have  lived  ever  since,  the  more  important  it  appeared 
to  me,  not,  indeed,  as  a  matter  of  curiosity,  but   one    which   involves 
the  gravest  interests  of  right.    When,  however,  the  idea  of   trying  to 
reduce  upon  ethic  principles  that  which  yet  appears  so  unsettled  in 
practical  municipal  politics,  and  to  find  some  firm  and  solid  foundations 
of  right  and  morality,  in  the  rolling  tides  of  party  actions,  was  gradually 
matured  in  my  mind ;  when  I  finally  concluded  to  undertake  a  work  on 
Political  Ethics,  I  was  naturally  led  to  reflect  more  thoroughly  on  Con- 
struction, and  to  arrange  my  thoughts  in  systematic  order.    For  it  seems 
evident  that  mathematics  alone  can  wholly  dispense  with  interpretation 
and  construction  of  some  sort,  while,  on  the  other  hand,  without  good 
faith  they  become  desperate  weapons  in  the  hands  of  the  disingenuous. 
They  form,  therefore,  a  subject  which  clearly  appertains  to  legal  and 
political  morals.     But  when  I  came  to  write  down  my  observations  in 
their  proper  connexion,  I  found  that  they  extended  much  beyond  the 
limits  which  could  be  fairly  allowed  to  a  single  chapter,  nor  did  the  crowd 
of  subjects  admit  of  more  than  one  being  occupied  by  this  specific  one. 
They  were  published  in  the  American  Jurist,1  after  which  I  thought  I 


1  October  number  of  183",  and  January  number  of  1838. 

mi> 


Vlii  AUTHORS    PREFACE    TO    SECOND    EDITION. 

might,  perhaps,  succeed  in  pruning  them  to  a  more  proportionate  size  for 
the  then  projected  and  now  half  published  work.  I  was  told,  however, 
that  the  article  had  found  favor  with  the  readers  of  the  Jurist,  and  that  a 
reduction  would  materially  injure  it,  while  I  was  called  upon  by  several 
professional  gentlemen  of  eminence,  to  publish  the  article  separately.  I 
followed  their  advice,  the  more  readily  as  I  was  desirous  of  adding  some 
remarks,  which  appear  to  me  of  sufficient  importance,  to  enlarge  the 
chapter  on  precedents,  and  to  add  a  new  one  on  authorities.  I  have  re- 
written the  whole,  as  a  superficial  comparison  will  show,  and  here  lay  the 
result  of  my  labors  before  the  reader.  May  it  do  some  good.  Whether 
I  have  succeeded  or  not,  I  believe  it  will  be  granted  on  all  hands,  that  the 
subject  is  a  very  important  one,  and  that  in  countries,  as  the  United 
States  and  England,  in  which  civil  liberty  teaches  the  citizen  to  look  for 
one  of  its  great  protections  in  the  exact  administration  of  the  laws,  and  a 
careful  avoidance  of  constant  explanation,  not  interpretation,  of  the  laws 
by  the  Public  Power — in  countries,  in  which  the  law  is  allowed  to 
make  its  own  way,  immutable  principles  and  fixed  rules  for  interpreting 
and  construing  them,  should  be  generally  acknowledged,  or  if  they  exist 
already,  in  a  scattered  state,  should  be  gathered  and  clearly  represented, 
so  that  they  may  establish  themselves  along  with  the  laws,  as  part  and 
branch  of  the  common  law  of  free  countries. 

January  1,  1839. 


DEDICATION 

OF   THE 

Second  Edition,  Published  in  1839, 

TO 

JAMES    KENT,     LL.D., 

Chancellor  of  New  York. 

Dear  Sir:  Your  name  placed  at  the  head  of  so  small  a  work  as  this, 
may  appear  to  many  readers  not  unlike  a  front  of  granite,  which  hides  a 
building  of  common  brick.  May  the  fact  that  I  have  been  bold  enough  to 
grace  this  book  with  your  name,  show  to  every  reader  how  desirous  I  was 
to  express  my  respect  for  your  labors,  and  my  sincere  thanks  for  your 
indulgence  towards  mine.  May  the  additions  I  have  made  to  the  Herme- 
neutics  not  induce  you  to  change  the  opinion  which  you  were  kindly 
disposed  to  take  of  the  first  edition.     I  am,  dear  sir, 

Your  respectful  servant, 

FKANCIS   LTEBER. 


Cix) 


TABLE    OF    CONTENTS. 


CHAPTER     I. 

PAGB 

No  direct  Communion  between  the  Minds  of  Men  j  Signs  are  neces- 
sary—  What  Signs  are  —  Utterance  —  Various  Signs  used  to  con- 
vey Ideas  —  Interpretation;  its  Definition  —  Etymology  of  the 
Word  —  Interpretation  is  not  arbitrary,  but  ought  to  proceed  by 
Rules  —  Words;  what  they  are  —  Words  most  common  Signs  of 
Communion  between  Men  —  Interpretation  of  Words  —  Text    .     .      1 


CHAPTER     II. 

Ambiguity  of  Human  Speech  —  Processes  of  Formation  of  Words  — 
Necessity  of  always  leaving  much  to  be  understood  by  Interpre- 
tation—Not to  be  avoided  by  Specification  and  Amplification — 
Causes  of  Ambiguity  in  the  Language,  the  Utterer,  the  Change  of 
Circumstances  —  Desire  of  avoiding  different  Interpretation  — 
Prohibition  of  Commentaries — Napoleon's  View  —  Interpreta- 
tion cannot  be  dispensed  with  —  Civil  Liberty  demands  Indepen- 
dence of  the  Judiciary,  of  the  Law  —  Correct  Interpretation  more 
necessary  in  free  Countries  than  in  States  not  free 13 


CHAPTER     III. 

Construction  —  Its  Definition  —  Twofold  Application  of  this  Defini- 
tion—  Necessity  of  Construction,  when  Interpretation  ceases  to 
avail  —  Necessity  of  distinguishing  between  Interpretation  and 
Construction  —  Instance  —  Doctrine  of  Cypres  —  Science  of  Iler- 
meneutics  —  Derivation  of  the  Word  —  Construction,  although 
dangerous,  yet  indispensable  —  Different  Species  of  Interpreta- 
tion, to  arrive  at  the  True  Sense  —  Close  Interpretation  —  Literal 
Interpretation  is  an  inadmissible  Term  —  Instances  of  pretended 
Literal  Interpretation  —  Extensive  Interpretation  — Liberal  Inter- 
pretation not  a  good  Term  —  Extravagant  Interpretation  —  Lim- 
ited and  Free  Interpretation  —  Predestined  Interpretation  — 
Artful  Interpretation  —  Authentic  Interpretation  —  Different  Spe- 
cies of  Theologic  Interpretation  —  Close,  Comprehensive,  Tran- 
scendant,  Extravagant  Construction  —  Indemnity  Bills     ....     43 

(xi) 


Xll  TABLE    OF    CONTENTS. 


CHAPTER     IV. 

PAGB 

Principles  of  Sound  Interpretation  —  Genuineness  of  the  Text  — 
Falsified  Texts  in  the  highest  as  the  lowest  Spheres  —  No  Sen- 
tence of  Words  can  have  more  than  one  True  Sense  —  Double 
Interpretation  is  False  Interpretation  —  Good  Faith  and  Common 
Sense  the  leading  Stars  of  all  Genuine  Interpretation  —  Moral 
Obligation  of  Legal  Counsel  —  Lord  Brougham's  Opinion — What 
Good  Faith  is  in  Interpretation  —  Peculiar  Circumstances  which 
may  make  Subterfuges  laudable  —  Literal  Interpretation  an  ever 
ready  Means  of  Tyranny  —  Political  Shuffling  —  Words  to  be 
taken  in  their  most  probable  Sense  —  Usus  Loquendi  —  To  what 
it  may  relate  —  Rules  to  ascertain  the  Meaning  of  doubtful 
Words  —  "  Contemporanea  expositio  est  fortissima  in  Lege"  — 
Instances  —  Technical  Terms  to  be  taken  in  their  technical 
Sense  —  That  which  is  inferior  cannot  defeat  that  which  is  supe- 
rior—  The  Text  itself  must  furnish,  if  possible,  the  Means  of 
interpreting  its  own  doubtful  Words  —  High  Considerations  on 
account  of  which  we  have  to  abandon  Interpretation  —  Case  of 
Lord  Bentinck's  Order  in  Council,  abolishing  Whipping  of  Native 
Indian  Soldiers,  and  a  Sepoy  and  Drummer  being  lashed,  because, 
having  become  a  Christian,  he  was  not  entitled  to  the  Privilege  of 
Natives  —  Case  of  Sir  Thomas  Parkyns  —  Recapitulation  of  the 
Principles  of  Interpretation 71 


CHAPTEE    V. 

Construction  is  unavoidable  —  The  Causes  why — Instances  —  Anal- 
ogy or  Parallelism  the  main  Guide  in  Construing  —  Rules  of  Con- 
struing—  We  begin  with  that  which  is  near — Aim  and  Object  of 
the  Text  —  Preambles  of  Laws  —  Shall  the  Motives  of  the  Utterer 
guide  us?  —  How  far?  —  "LexNeminem  cogit  ad  Impossibilia  "  — 
Texts  conferring  Privileges  —  Close  construction  necessary  in 
construing  Contracts  —  Construction  of  Promises  and  Obliga- 
tions—  Maximum  and  Minimum  — That  which  agrees  most  with 
the  Spirit  and  Tenor  of  the  Text  is  preferable  —  Effects  and  Con- 
sequences of  the  Construction  may  guide  us  —  Blackstone  — 
Antiquity  of  Law  makes  frequently  extensive  Construction  neces- 
sary—  Habitual  close  Interpretation  and  Construction  favorable 
to  Civil  Liberty  —  Words  of  a  relative  or  generic  Meaning  to  be 
taken  in  a  relative  or  expansive  Sense  —  Rules  respecting  this 
Point  —  The  Weak  have  the  Benefit  of  Doubt  —  The  Superior 
Object  cannot  be  defeated  by  the  Inferior  —  Recapitulation  of  the 
Principles  of  Construction 110 


TABLE    OP    CONTENTS.  Sill 


CHAPTER     VI. 


PAGE 


Hermoneutic  Rules  respecting  detached  spoken  Words  or  Sentences  — 
Conversation  — Hearsay  —  In  judicial  Procedures-  -Letters,  Jour- 
nals, Private  Notes — Speeches — PampMete —  Orders,  Directions, 
&c,  of  a  passing  Nature  — Contracts,  Deeds,  Wills,  &c-  -Laws 
must  at  Times  be  interpreted  or  construed —  Hermeneutic  Rules 
respecting  Laws  —  Constitutions  —  Constitutions  are  Laws  and 
Guarantees  —  Various  Constitutions  —  Rules  of  Constitutional 
Hermeneutics  —  The  Veto  and  Pardoning  Privilege  —  Interna- 
tional Treaties 138 


CHAPTER    VII. 

Precedents  —  Definition  — Natural  Tower  of  Precedents  —  Power  of 
Precedent  in  England  —  Reasons  of  the  Powerful  Influence  of 
Precedents  —  "Wisdom  of  our  Forefathers"  —  Lineal  Assent, 
Contemporary  Assent  — Great  Force,  for  Good  or  Evil,  of  Prece- 
dents in  Politics  —  Reasons  —  Distinction  between  Legal  and 
Political  Precedents  — Precedents  of  a  mixed  Character — Prece- 
dents necessary  for  the  Development  of  Law  for  Civil  Liberty  — 
They  settle  the  Knowledge  of  what  is  Law  — Necessary  Qualities 
of  sound  Legal  Precedents  — Executive  Acts  are  no  Precedents, 
except  for  Subordinate  Officers,  if  not  against  Law  —  Fearful 
Instance  of  Executive  Precedent  in  the  History  of  the  Star- 
Chamber  — No  Man  shall  take  Advantage  of  his  own  Wrong  — 
Sound  Precedents  —  Precedents  must  be  taken  with  all  their 
Adjuncts  —  No  Precedent  weighs  against  Law  and  Right  — Still 
less  against  Reason  —  Precedents  must  not  increase  Public 
Power  —  Precedents  must  settle,  not  unsettle  —  Precedents  may 
be  overruled  if  necessary  — The  greatest  Lawyers  have  done  so, 
for  instance,  Lord   Coke I82 


CHAPTER     VIII. 

Authorities  — Akin  to  Precedents — Definition —  Ought  we  to  submit 
to  them?  —  Slavish  Submission  to  them  —  Arrant  Disregard  of 
them  — We  must  always  adopt  Authorities  in  many  Branches  — 
Main  Questions  of  Historic  Criticism— Similar  ones  regarding 

Authorities  — Who  is  he?  — What  Opportunity  had  he  to  know 
the  Subject  ?  —  What  Motive  prompted  him?  —  What  internal 
Evidence  is  there?  — Various  Phases  of  the  same  Authority- 
Classical  Periods— Of  what  Extent  is  the  Authority?     .     .     .     .213 


XIV  TABLE    OF    CONTENTS. 

SUPPLEMENTARY  NOTES  BY  THE  EDITOR. 
N0TE    A- 

Bibliography  of  Interpretation 229 

NOTE    B. 
Divisions  of  Interpretation  by  various  Authors 233 

NOTE    C. 
The  Province  of  Legal  Hermeneutics 245 

NOTE    D. 
On  the  Term  "  Sovereignty  " 250 

NOTE    E. 
Authentic  Interpretation 252 

NOTE    F. 
On  the  Roman  "  Interpretatio  " 260 

NOTE    G. 
On  Analogy  and  "Katio  Legis" 274 

NOTE    H. 
Equitable  Interpretation 283 

NOTE    I. 
On  the  Value  of  Formal  Rules  of  Interpretation 289 

NOTE    J. 
On  the  Interpretation  of  Criminal  Law 293 

NOTE     K. 
On  the  Construction  of  Contracts,  etc 299 

NOTE    L. 
On  Legal  Definitions 302 

NOTE     M. 
On  Constitutional  Construction 305 

NOTE    N. 
On  Precedent  and  the  Nature  of  Authority  in  the  Law 312 

NOTE    O. 
The  Case  of  Stradling  v.  Styles 331 

NOTE    P. 
The  Case  of  Sibyl  Belknap 332 


CHAPTER    I. 

No  direct  Communion  between  the  Minds  of  Men;  Signs  are  necessary  — 
What  Signs  are  —  Utterance  —  Various  Signs  used  to  convey  Ideas  — 
Interpretation;  its  Definition  —  Etymology  of  the  Word  —  Interpreta- 
tion is  not  arbitrary,  but  ought  to  proceed  by  Rules  —  Words;  what 
they  axe  —  Words  most  common  Signs  of  Communion  between  Men  — 
Interpretation  of  Words  —  Text. 

I.  There  is  no  direct  communion  between  the  minds 
of  men ;  whatever  may  be  the  thoughts,  emotions,  con- 
ceptions, ideas  of  delight  or  sufferance  which  Ave  feel  urged 
to  impart  to  other  individuals,  we  cannot  obtain  our  object 
without  resorting  to  the  outward  manifestation  of  that 
which  moves  us  inwardly,  that  is,  to  signs.  There  is  no 
immediate  communion  between  the  minds  of  individuals,  as 
long  as  wTe  are  on  this  earth,  without  signs,  that  is,  expres- 
sions perceptible  by  the  senses.  The  most  thrilling  emo- 
tions of  a  mother's  heart,  watching  over  a  suffering  child, 
the  most  abstract  meditation  of  the  philosopher,  the  sub- 
limest  conception  of  the  poet,  or  the  most  faithful  devotion 
of  a  martyr  in  a  pure  and  noble  cause,  can  no  more  be 
perceived  by  others  or  communicated  to  them  without  signs 
or  manifestations,  than  the  most  common  desires  of  daily 
intercourse,  or  our  physical  wants  for  sustenance  or  pro- 
tection. 

Signs,  in  this  most  comprehensive  sense,  wrould  include  all 
manifestations  of  the  inward  man,  and  extend  as  well  to  the 
deeds  performed  by  an  individual,  inasmuch  as  they  enable 
us  to  understand  his  plans  and  motives,  as  to  signs  used  for 

(i) 


Z  HEEMENEUTICS. 

the  sole  purpose  of  expressing  some  ideas.  In  other  words, 
the  term  would  include  all  marks,  intentional  or  uninten- 
tional, by  which  one  individual  may  understand  the  mind 
or  the  whole  disposition  of  another,  as  well  as  those  which 
express  a  single  idea  or  emotion.  The  look  of  tenderness 
or  tear  of  compassion  is  a  sign  as  well  as  the  mile-stone  on 
the  road,  or  the  skull  and  cross  bones  painted  on  a  vessel 
which  contains  deadly  poison. 

II.  There  is  a  primeval  principle  in  man  which  ever 
urges  him  with  irresistible  power  to  represent  outwardly 
what  moves  him  strongly  within,  a  pressing  urgency  of 
utterance,  so  that  men,  through  all  the  many  spheres  of 
life  and  action,  feel  a  want  of  manifesting  without  that 
which  stirs  their  mind  or  heart ;  even  though  there  be  no 
direct  object  which  they  consciously  desire  to  obtain  by 
this  manifestation.  The  anxious  desire  of  utterance  is 
independent  of  any  principle  of  utility,  that  is,  of  the 
conscious  desire  of  obtaining  a  certain  end  by  the  mani- 
festation of  our  inward  state.1     A  victory  is  gained ;  the 


1  "  Man,  in  his  primitive  state,  was  not  only  endowed  like  the  brute  with  the  power 
of  expressing  bis  sensations  interjections,  and  his  .  ■  rcptions  by^noruatopceia, 
he  possessed  likewise  the  I  eulty  >>f  giving  more  articulate  express*  n  to  the  ra- 
tional conceptions  of  his  mind.  That  faculty  was  not  of  his  own  making.  It  was  an 
instiiict,  —  an  instinct  of  the  mind,  as  irresistible  as  any  other  instinct.  So  far  as  lan- 
guage is  the  production  of  that  instinct,  it  belongs  to  the  realm  of  nature.  Man 
loses  his  instincts  as  he  ceases  to  want  them.  His  senses  become  fainter  when,  as 
in  the  case  of  scent,  they  become  useless.  Thus,  the  creative  faculty  which  gave  to 
each  conception,  as  it  thrilled  for  the  first  time  through  the  brain,  a  phonetic  ex- 
pression, became  extinct  when  its  object  was  fulfilled."  Max  Miiller,  Science  of 
Language,  First  Series,  pp.  3S4,  385. 

I  quote  this  passage  as  a  confirmation  of  our  author's  remark  that  the  desire  of 
utterance  is  independent  of  any  conscious  desire  of  obtaining  a  certain  end  by  the 
manifestation  of  our  inward  state;  at  the  same  time  respectfully  dissenting  from  so 
much  of  Midler's  theory  as  supposes  this  spontaneous  process  to  be  peculiar  to  a 
primitive  and  now  obsolete  condition  of  mankind.  The  consciousness  of  eveiy 
individual  who  has  carefully  watched  his  own  impulses,  as  well  as  the  observation 
of  such  facts  as  are  collected  by  our  author  in  the  text  above,  seem  to  furnish 
sufficient  proof  that  the  instinct  still  exists,  only  modified,  as  all  such  instincts 


HERMENEUTU  B.  6 

people  rejoice  at  it  ;  they  illuminate  their  houses,  and  lighl 
bonfires.  It  may  be  Ear  in  the  interior,  at  a  great  distance 
from  the  enemy.  They  neither  do  it  to  taunt  the  hostile 
armies.  nor  particularly  to  honor  the  victors.  They  do  i1 
because  their  minds  and  souls  are  in  a  state  of  triumph  and 
rejoicing,  and  they  cannot  resist  expressing  it.  A  temple 
is  to  be  built  for  the  reception  of  those  who  feel  a  msh  to 
adore  their  God.  The  building  is  planned  and  executed  in 
a  nobler  style  than  the  ordinary  dwellings  of  men,  not  to 
flatter  the  deity  or  to  honor  the  Mosl  High,  for  the  fabric 
may  be  building  by  those  whose  religion  teaches  them  that 
He  cannot  be  flattered  by  men,  that  His  honor  doe-  not 
depend  upon  frail  mortals,  but  because  their  mind,  in 
erecting  a  church,  is  in  a  different  frame  from  what  it  is  in 
when  they  buil  i  sottage,  and  they  feel  urged  to  mani 
it  accordingly.  sses  differently  for  a  gay  feast  and 

for  a  funeral  of  his  departed  friend.  Man  might  sleep  on 
straw  as  his  domestic  animals  do,  and  soundly  and  healthily 
too,  but  he  has  an  innate  love  of  the  beautiful,  and  it  urges 
him  to  surround  himself  with  tasteful  furniture,  even,  not 
unfrequently,  against  the  dictates  of  mere  utility  ;  although 
I  would  observe,  in  passing,  that  this  innate  lo\  of  the 
beautiful  which,  in  some  stage  of  development,  we  find  with 
all  men  and  with  no  animal,  is  oue  of  the  broad  foundations 


must  in1,  by  the  possession  ami  ase  of  the  mean*  of  expression  which  have  been 
accumulated  daring  past  ages.  The  difference  between  the  primitive  ami  the 
civilized  man  iii  this  respect  i-  well  compared  by  Mtiller  himself  to  the  difference  in 
the  physical  senses;  and  it  now  seems  to  be  generally  agreed,  by  those  who  have 
had  the  best  opportunities  of  judging,  that  the  superiority  of  the  savage  in  scent, 
vision,  etc.,  has  been  vastly  exaggerated.  At  all  events,  it  i~  a  mere  difference  of 
degree.  The  civilized  man  smells,  sees,  hears,  to  tin' full  extent  his  aeeds  require; 
and  so  the  modern  civilized  man  otters  his  feelings  by  a  natural  Impulse,  although, 
In  all  hut  exceptional  cases,  the  accumulated  stock  of  recognized  vocal  ?ign;  saves 
him  the  necessity  of  devising  a  new  one.  —  Ed. 


4  HERMENEUTICS. 

of  all  industry,  but  not  consciously  made  so  by  reflecting 
utilitarianism  or,  as  it  is  termed  by  others,  enlightened 
self-interest ;  another  mind,  and  a  deeper  wisdom  than 
human  intellect  is  capable  of,  has  made  this  one  of  the  first 
and  indestructible  foundations  of  civilization. 

One  more  remark  respecting  this  subject,  and  I  shall 
turn  to  what  more  directly  occupies  us.  I  have  endeavored, 
in  another  work,*  to  show  how  indispensably  man's  indi- 
viduality is  connected  with  his  morality.  Had  the  Creator 
established  a  means  of  direct  influence  of  mind  upon  mind 
among  men,  such  for  instance  as  the  adherents  to  the 
theory  of  animal  magnetism  pretend  to  have  found,  it 
would  seem  that  this  individuality  would  be  greatly  im- 
paired, perhaps  totally  destroyed.  Yet  it  was  the  evident 
plan  of  our  Maker,  to  link  man  to  man,  to  lead  him  to 
society,  and  lead  this  society  onward  from  stage  to  stage. 
Absolute  individuality,  or  utterance  restricted  for  the  pur- 
pose of  utility,  would  have  fettered  man  in  the  lowest 
bondage  of  sordid  egotism  ;  and  God  may  have  impressed 
that  urgency  of  manifestation  indelibly  upon  the  human 
soul,  as  one  of  the  chiefest  means  of  sociability,  civilization 
and  elevation.  For  nearly  all  that  is  choicest  in  mankind 
is  owing  first  of  all  to  this  irresistible  anxiety  of  manifes- 
tation. 

III.  The  term  Sign  has  been  taken,  in  the  preceding 
paragraphs,  for  spontaneous  or  involuntary  manifestations. 
Involuntary  signs  are  of  the  highest  importance  in  human 
life,  and  therefore  in  law,  as  evidences ;  they  may  indicate 


*  Political  Ethics,  Vol.  1,  Book  1. 


BERMENEUTICS.  5 

the  opposite  to  that  which  they  would  mean,  if  taken  as 
voluntary  signs.     If  the  police  awaken  a  person  suspected 

of  murder,  and  he  were  to  exclaim,  "  I  did  not  minder  thai 
man;  lam  innocent,"  without  having  been  charged  with 
the  crime,  this  involuntary  exclamation,  on  being  suddenly 
disturbed  in  sleep,  might  go  far  to  indicate  the  very  oppo- 
site to  the  positive  import  of  the  words.  To  find  out  the 
true  meaning  of  involuntary  signs  belongs  to  the  sphere  of 
shrewdness,  feeling,  delicacy  or  common  intercourse,  and 
is  hardly  capable  of  being  reduced  to  scientific  rules.  We 
have  to  deal  here  with  voluntary  signs  only. 

The  signs  which  man  uses,  the  using  of  which  implies 
intention,  for  the  purpose  of  conveying  ideas  or  notions  to 
his  fellow-creatures,  are  very  various  ;  for  instance,  gestures, 
signals,  telegraphs,  monuments,  sculptures  of  all  kinds, 
pictorial  and  hieroglyphic  signs,  the  stamp  on  coins,  seals, 
beacons,  buoys,  insignia,  ejaculations,  articulate  sounds,  or 
their  representations,  that  is  phonetic  characters  on  stones, 
wood,  leaves,  paper,  etc.,  entire  periods,  or  single  words, 
such  as  names  in  a  particular  place,  and  whatever  other 
signs,  even  the  flowers  in  the  flower  language  of  the  East, 
might  be  enumerated. 

IV.  These  signs  then  are  used  to  convey  certain  ideas, 
and  interpretation,  in  its  widest  meaning,  is  the  discovery 
and  representation  of  the  true  meaning  of  any  sign-  used  to 
convey  ideas. 

The  "true  meaning"  of  any  signs  is  that  meaning  which 
those  who  used  them  were  desirous  of  expressing.  (See 
sec.  VII.). 

*'  Using  signs  "  does  not  only  include  the  origination  of 


(j  HERMEXEUTICS. 

their  combination  in  a  given  case,  but  also  the  declared 
or  well  understood  adoption  or  sanction  of  them,  wherever 
there  are  several  parties  who  endeavor  to  express  their 
ideas  by  the  same  combination  of  signs.2 

In  the  case  of  a  compact,  for  instance,  a  treaty,  con- 
tract, or  any  act  of  the  nature  of  an  agreement,  the  party 
who  avowedly  adopts  the  contract,  treaty,  etc.,  or  gives  his 
tacit  assent  to  it,  makes  as  much  use  of  the  signs  declara- 


2  "  Speech  is  not  a  personal  possession, but  a  social;  it  belongs,  not  to  the  individ- 
ual, but  to  the  member  of  society.  No  item  of  existing  language  is  the  work  of  an 
individual;  for  what  we  may  severally  choose  to  say  is  not  language  until  it  be  ac- 
cepted and  employed  by  our  fellows.  The  whole  development  of  speech,  though 
initiated  by  the  acts  of  individuals,  is  wrought  out  by  the  community.  That  is  a 
word,  no  matter  what  may  be  its  origin,  its  length,  its  phonetic  form,  which  is  un- 
derstood in  any  community,  however  limited,  as  the  sign  of  an  idea;  and  their 
mutual  understanding  is  the  only  tie  which  connects  it  with  that  idea.  It  is  a  sign 
which  each  one  has  acquired  from  without,  from  the  usage  of  others,  and  each  has 
learned  the  art  of  intimating  by  such  signs  the  internal  acts  of  his  mind.  Mutual 
intelligibility,  we  have  seen,  is  the  only  quality  which  makes  the  unity  of  a  spoken 
tongue;  the  necessity  of  mutual  intelligibility  is  the  only  force  that  keeps  it  one; 
and  the  desire  of  mutual  intelligibility  is  the  impulse  which  called  out  (?)  speech. 
Man  speaks  then  primarily,  not  in  order  to  think,  but  in  order  to  [express?]  impart 
his  thought.  His  social  needs,  his  social  instincts,  force  him  to  expression.  A 
solitary  man  would  never  frame  a  language.  *  *  *  It  is  a  well  known  fact  that 
children  who  are  deprived  of  hearing,  even  at  the  age  of  four  or  live  years,  after 
they  have  learned  to  speak  readily  and  well,  and  who  are  thus  cut  off  from  vocal 
communication  with  those  about  them,  usually  forget  all  they  had  learned,  and 
become  as  mute  as  if  they  had  never  acquired  the  power  of  clothing  their  thoughts 
in  words.  The  internal  impulse  to  expression  is  there,  but  it  is  impotent  to  develop 
itself  and  produce  speech;  exclusion  from  the  ordinary  intercourse  of  man  with 
man  not  only  thwarts  its  progress,  but  renders  it  unable  to  maintain  itself  upon  the 
stage  at  which  it  had  already  arrived."  W.  I).  Whitney,  Language  and  the  Study  of 
Language,  pp.  404,  405. 

This  passage  occurs  in  connection  with  a  criticism  of  the  theory  advocated  by 
Max  Miiller  (for  which  see  the  preceding  note),  and  Prof.  Whitney  evidently 
regards  the  two  theories  as  irreconcileable.  But  with  a  few  slight  modifications  of 
expression,  such  as  I  have  indicated  above,  there  seems  to  be  no  reason  why  the 
two  may  not  be  held  together.  Prof.  Whitney  himself  recognizes  the  existence 
of  an  "internal  impulse  to  expression"  even  in  the  case  of  a  deaf-mute,  who  has 
no  power  of  imparting  his  thought  to  others  by  the  usual  mode  of  utterance.  On 
the  other  hand,  no  disciple  of  Miiller  certainly  could  claim  that  the  internal  impulse 
or  instinct  could  ever  produce  a  developed  language  without  the  presence  of 
another  person  to  be  spoken  to,  and  the  conscious  desire  on  the  speaker's  part 
to  produce  a  definite  impression  on  the  hearer's  mind.  The  difference  in  the  two 
theories  seems  to  consist  chiefly  in  the  fact  that  each  dwells  upon  a  different  factor 
in  the  complex  process  by  which  a  language  is  evolved.  Dr.  Lieber,  though  only 
touching  incidentally  upon  these  points  in  the  pursuit  of  his  main  object,  clearly 
recognizes  the  existence  of  both  factors.  — Ed. 


HERMENEUT1C8.  7 

tory  of  the  agreemenl  as  the  party  who  originated  them. 
Forced  silence,  or  the  impossibility  of  expressing  dissent, 
is,  of  course,  not  comprehended  within  the  term  "  tacit 
assent." 

Xhe  ancient  rule  in  law,  therefore,  thai  qui  facet  consentire 
videtur,  (  he  who  keeps  silent  is  regarded  as  consenting,)  is 
correct,  provided  we  give  the  proper  meaning  to  the  term 
videtur.  It  has  been  justly  amplified  thus:  "  He  who  re- 
mains silent  and  inactive,  when  he  has  power  and  is  under 
obligation  to  object  or  resist,  is  regarded  as  assenting."  * 
If  a  person  is  deceived,  his  silence  is  of  course  not  con- 
sent, nor  is  it  such  if  he  that  has  power  first  prohibits 
all  contradiction,  and  afterwards  construes  silence  into 
assent,  a  case  which  has   repeatedly  occurred   in  history. 

V.  All  the  signs  enumerated  above  require  interpreta- 
tion ;  that  is,  it  is  necessary  for  him,  for  whose  benefit  they 
are  intended,  to  find  out  what  those  persons  who  used  the 
sign  intend  to  convey  to  the  mind  of  the  beholder  or  hearer. 
Thus,  some  beacons  signify  to  the  approaching  mariner  that 
there  is  great  danger  in  their  vicinity;  others  indicate,  by 
their  guiding  light,  the  safest  passage  into  a  port.  If  the 
mariner  does  not  know  how  to  interpret  these  signs,  he  will 
attach  a  wrong  meaning  to  them,  or  be  at  a  loss  what 
meaning  they  have.  Thus,  likewise,  have  the  historian  and 
antiquarian  to  interpret  inscriptions  on  medals,  and  not 
only  the  words  they  may  contain,  but  also  certain  emblems, 
representations  of  animals  or  things.     Some  pictures  must 


*  "Qui  tacet  verbo  et  facto,  ubi  obloqui  vel  resistere  potest  ac  debet, 
consentire  videtur."  Krug,  Professor  of  Philosophy  in  the  University  at 
Leipzig,  in  bis  Philosophy  of  Law,  (Rechtslehre.) 


8  HEEMENEUTICS. 

be  likewise  interpreted,  for  instance,  those  which  are  found 
on  the  walls  of  Egyptian  temples ;  that  is  to  say,  it  is  one 
of  the.  occupations  of  the  historian  and  antiquarian  to  find 
out  the  meaning  of  these  various  representations,  i.e.  the 
ideas  which  he  who  made  them  (or  ordered  them  to  be 
made)  intended  to  convey  to  the  beholder. 

If  we  believe  that  one  of  the  objects  of  God,  in  creating 
the  world,  was  to  manifest  His  wisdom  and  goodness  to 
man,  the  expression  of  interpreting  nature  is  correct.  By 
interpreting  the  actions  of  a  man,*  we  mean  to  designate 
the  endeavor  to  arrive  at  their  direct  meaning,  the  motives 
from  which  they  flowed ;  by  construing  his  actions,  we 
rather  indicate  an  endeavor  of  arriving  at  conclusions  with 
reference  to  the  whole  character  of  the  individual  acting, 
or  at  least  at  something  which  lies  beyond  the  nearest 
motives  of  the  specific  acts  in  question.  This  agrees  sub- 
stantially with  the  difference  between  interpretation  and 
construction  which  will  appear  in  the  course  of  this  work.f 


*  To  explain  and  interpret,  are  not  confined  to  what  is  written  or  said ; 
they  are  employed  likewise  with  regard  to  the  actions  of  men.  Crabb 
Eng.  S3Ti.,  ad  verb.  Explain. 

t  It  is  always  well  to  have  every  thing  as  clear  around  us  as  possible ; 
it  gives  light  and  imparts  vigor  to  the  mind,  if  we  see  the  Whence  and  the 
Whither  of  things,  and  trace  connection  where  insulation  seems  to  exist, 
even  though  it  be  in  matters  apparently  trifling.  I  hope  to  be  pardoned, 
therefore,  by  the  strictly  practical  Lawyer,  if  I  dwell  for  a  moment  on  the 
origin  of  the  word  which  claims  our  attention  for  the  present,  in  a  sphere 
very  different  from  that  of  Law.  To  Interpret,  as  is  well  known,  is  derived 
from  the  Latin  interpres,  interpretari,  a  compound  of  inter  and  pretari. 
The  latter  belongs,  as  nearly  all  truly  Latin  words,  according  to  its 
root,  to  that  language  which  was  spoken  by  the  original  inhabitants  or 
settlers  of  Europe,  and  of  which  the  Gothic,  ancient  High  German,  Swed 


HERMENEUTICS.  9 

VI.  The  idea,  involved  in  the  term  Interpretation,  that 
we  have  to  discover  the  true  meaning  of  signs,  and  represent 
it  to  others,  implies,  likewise,  that  we  proceed  in  doing  so 
on  safe  ground,  according  to  rules  established  by  reason, 
and  not  arbitrarily  or  whimsically.  On  this  account,  inter- 
pretation, and,  as  will  be  seen  in  the  sequel,  construction, 
are  distinct  from  conjecture.  Still  it  lies  in  the  nature  of 
things,  that,  in  some  cases,  they  approach  to  each  other. 


ish,  Icelandic,  Latin,  etc.,  are  but  descended,  and  which  was  likewise 
either  the  first  foundation  of  the  Greek,  or  so  strongly  influenced  it,  that 
the  root  of  innumerable  words  is  easily  traced  through  all  these  languages. 
The  many  profound  inquiries  of  European  philologists  have  brought  so 
many  facts  to  light,  that  this  connection  may  be  considered  as  firmly 
established,  while  historic  inquiries  have  shown  the  vast  population  of 
Italy  long  before  any  records  of  the  Romans  began.  Pretari  is  of  the 
same  root  with  many  words  in  Teutonic  languages ;  prata  in  Swedish  is 
speaking ;  we  have  prating  and  prattling ;  the  German  reden,  (pronounced 
raden,)  speaking,  is  the  same,  for  d  and  t  easily  change,  while  a  conso- 
nant before  another  (  P  in  this  case)  is  frequently  dropped,  or  it  may  be 
that  reden  is  the  original.  Pratcn  signifies,  to  this  day,  in  some  parts  of 
Germany,  speaking  loud  and  monotonously.  Prcedicare  and  the  Greek 
<ppa*sw  belong  to  the  same  family  of  words.  It  is  very  possible  that 
pretari  and  prating  are  of  the  same  root  with  broad,  German  breit,  speak 
broadly,  plainty.  The  present  German  word  for  interpreting  is  auslegen, 
laying  out,  laying  open,  unfolding.3 

3  Upon  the  meaning  of  inter pretatio,  as  used  by  the  Koman  classical  jurists,  see 
Additional  Note  P,  in  Appendix.  Upon  the  force  of  the  German  word  auslegen, 
mentioned  at  the  end  of  the  author's  note,  Savigny  remarks  as  follows:  "The  term 
Auslegung  [which  is  the  noun  relating  to  the  infinitive  auslegen,  a<  interpretation  to 
the  verb  to  interpret],  equivalent  to  the  Latin  explicatio,  is  peculiarly  adapted  to 
express  the  aim  of  the  process  of  interpretation,  which  is  to  evolve  from  the  rule 
interpreted  every  possible  legal  truth  that  is  contained  therein.  For  the  term  im- 
plies that  whatever  is  contained  and,  so  to  speak,  wrapped  up  in  the  language  of  the 
rule  is  unfolded  and  brought  to  light,  and  thu-  made  known.  The  term  Erkldrung, 
on  the  other  hand  [used  by  other  German  writers  to  designate  the  same  process, 
and  literally  signifying  a  making  clear],  rather  implies  that  an  accidental  obscurit} 
is  done  away  with,  darkness  changed  into  light ;  and,  therefore,  is  less  significant  of 
the  true  nature  of  the  province  of  interpretation."  System  des  heutigen  H.  It.,  1. 
216  n.  (c).-Eu. 


10  HERMENEUTICS. 

Conjecture  is  vague,  interpretation  is  distinct ;  but  in  pro- 
portion as  that,  which  is  to  be  interpreted,  affords  less 
opportunity  for  the  application  of  the  rules  established  for 
interpretation,  the  latter  approaches  to  conjecture  ;  provided 
we  have  not  to  apply  construction. 

VII.  Those  signs  by  which  man  most  frequently  en- 
deavors to  convey  his  ideas  to  another,  and  by  which,  in 
most  cases,  he  best  succeeds  in  conveying  them,  are  words. 

Words  are  articulate  sounds,  or  the  representation  of 
them  on  or  in  some  material  by  certain  adopted  characters, 
to  which,  single  or  combined,  we  attach  certain  fixed  ideas. 
The  idea  or  notion  thus  attached  to  any  word  is  called  its 
signification ;  the  general  idea,  or  the  assemblage  of  ideas 
or  notions,  conveyed  by  several  words  grammatically  con- 
nected together,  is  called  the  sense  or  meaning  of  the  worda 
or  period.  The  true  sense  or  meaning  is  that  which  they 
ought  to  convey. 

It  is  clear,  therefore,  that  the  term  "true  sense,"  in  its 
most  comprehensive  adaptation,  may  signify  different  things, 
according  to  the  different  object  we  have  in  view.  Thus 
a  teacher  will  say  to  his  pupil,  who  has  unskilfully  expressed 
himself:  "  You  meant  to  say  such  a  thing,  but  the  true 
meaning  of  your  period  is  quite  a  different  one  ;  that  is,  the 
meaning  which  your  words  express,  according  to  their  sig- 
nification and  the  rules  of  combining  them  universally 
adopted,  is  different  from  what  you  intended  to  say."  The 
teacher  is  right  in  calling  the  true  sense  that  which  the 
words  express  according  to  the  general  rules,  for  his  object 
is  to  teach  the  pupil  how  to  convey  his  ideas  correctly  and 
perspicuously,  to  make  use,  therefore,  of  the  words  accord- 


li i ;i;\]  i:\KUTICS.  11 

inir  to  rules  generally  adopted,  without  which  there  would 

be  no  such  thing  as  understanding  one  another  a ng  men. 

The  case  changes,  however,  when  the  object  of  the  speaker 
or  writer  is  not  to  learn  the  use  of  words,  but  simply  to 
convey  certain  ideas.  True  sense  is  in  this  case  the  meaning 
which  the  person  or  persons,  who  made  use  of  the  words, 
intended  to  convey  to  others,  whether  he  used  them  cor- 
rectly, skilfully,  logically  or  not. 

Understanding  or  comprehending  a  speaker  or  something 
written  means  attaching  the  same  signification  or  sense  to 
the  words  which  the  speaker  or  writer  intended  to  convey. 

VIII.  Inasmuch,  therefore,  as  the  term  Interpretation 
is  applied  to  words  used  as  the  common  means  of  converse 
or  communion  among  men,  we  define  it  thus  :  — 

Interpretation  is  the  art  of  finding  out  the  true  sense  of 
any  form  of  words;  that  is,  the  sense  which  their  author 
intended  to  convey,  and  of  enabling  others  to  derive  from 
them  the  same  idea  which  the  author  intended  to  convey. 
It  was  this  latter  which  was  meant  by  the  word  "repre- 
sentation "  in  section  IV.  of  this  chapter. 

Sometimes  interpretation  signifies,  likewise,  the  art  which 
teaches  us  the  principles  according  to  which  we  ought  to 
proceed  in  order  to  find  the  true  sense.*  This  art  or  science, 


*  See  Prolegomena  iii.  in  Ernesti,  Institutio  Interpret  is,  p.  G,  Vol.  I.,  in 
the  translation  of  Mr.  Terrot,  Vol.  I.  of  the  Biblical  Cabinet,  Edinburgh, 
1832.* 

*  In  the  American  edition  of  Ernesti,  translated  by  Pn>f.  Moses  Stuart  (as  to  which 
see  Additional  Note  A,  Bibliography  of  Interpretation),  the  passage  is  Intro- 
duction, §  3,  p.  It,  and  roads  as  follows:  — 

The  art  of  interpretation  is  the  art  of  teaching  what  Is  the  meaning  of  another's 
language;  or  that  skill  which  enables  as  to  attach  to  another's  language  the  same 
meaning  that  the  author  himself  attached  to  it.  —  Ki>. 


12  .  HERMENEUTICS. 

however,  is  better  called  the  principles  of  interpretation,  or, 
which  is  preferable  to  either,  Hermeneutics,  of  which  more 
will  be  said  hereafter. 

In  law  and  politics  we  have  to  deal  so  little  with  the 
interpretation  of  any  other  signs  than  words,  that  the  term 
Interpretation,  if  used  without  any  additional  expression, 
means  always  the  interpretation  of  words. 

For  the  sake  of  brevity,  the  term  Text  will  be  used,  to 
designate  the  word  or  words,  or  discourse  to  be  interpreted 
or  construed,  or  the  whole  writing  in  which  they  are  con- 
tained. The  term  Utterer  may  be  used  for  the  author  of 
the  words  to  be  interpreted,  whether  he  uttered  them  in 
writing  or  orally.5 


6  See  Additional  Note  C,  on  the  Province  of  Legal  Hermeneutics. —  Ed. 


CHAPTER    II. 

Ambiguity  of  Human  Speech  —  Processes  of  Formation  of  Words  — 
Necessity  of  always  leaving  much  to  be  understood  by  Interpreta- 
tion—Not to  be  avoided  by  Specification  and  Amplification  —  Causes 
of  Ambiguity  in  the  Language,  the  Utterer,  the  Change  of  Circum- 
stances—  Desire  of  avoiding  different  Interpretation  —  Prohibition  of 
Commentaries  —  Napoleon's  View  —  Interpretation  cannot  be  dis- 
pensed with —  Civil  Liberty  demands  Independence  of  the  Judiciary, 
of  the  Law  —  Correct  Interpretation  more  necessary  in  free  Countries 
than  in  States  not  free. 

I.  If  Interpretation  is  the  discovery  of  the  true  sense  of 
words,  it  is  presumed  that  this  sense  is  not  obvious  ;  for, 
that  which  must  be  discovered  or  found  out  must  needs  be 
hidden,  in  some  way  or  other,  before  it  is  discovered.  Yet 
words  signify  ideas  or  things,  and  how  does  it  happen  that, 
if  used  for  the  very  purpose  of  conveying  our  ideas,  they 
can  leave  any  doubt? 

The  ambiguity  of  human  speech  is  owing  to  a  vast  variety 
of  causes,  at  times  intentional,  at  others  unintentional, 
avoidable  or  unavoidable,  owing  to  the  utterer,  to  the 
words  or  the  situation  of  things  and  their  chancres.  The 
most  common  or  most  important  causes  will  be  given  here, 
and  it  is  necessary  to  weigh  them  well,  since  many  errors 
in  the  highest  spheres  of  politics  and  law  have  arisen  from 
an  insufficient  consideration  of  these  causes,  and  a  conse- 
quent belief,  which  still  manifests  itself  not  unfrequentlv  in 
many,  that  ambiguity  can  be  entirely  avoided,  or  that  cer- 
tain instruments  of  the  gravest  import  do  not  admit  of  any 
doubt,  and,  consequently,  do  not  require  interpretation. 

(13) 


14  HERMENEUTICS. 

II.  In  no  case  are  words,  originally,  produced  in  a 
finished  state  by  the  reflecting  intellect,  and  consciously 
affixed  to  objects,  presenting  themselves  to  the  mind  in 
their  clearly  defined  state,  but  on  the  contrary,  things, 
actions,  in  short,  phenomena,  present  themselves  as  a 
whole,1  with  a  number  of  adjuncts,  a  mass  of  adhesion,  and 
words  become  in  the  course  of  time  only,  enlarged  in  their 
meaning  to  more  generic  terms,  or  a  prominent  quality 
strikes  so  manifestly  the  human  mind,  that  it  alone  urges 
to  utterance,  which  in  course  of  time  only  becomes  more 
restricted  to  specific  objects.  As,  however,  these  processes 
are  going  on  at  the  same  time,  with  many  people,  subject 
indeed  to  the  same  general  laws,  but  not  being  under  the 
same  specific  influences,  the  natural  consequence  is,  that 
terms  receive  a  meaning,  distinct  indeed  as  to  some  points, 
but  indistinct  as  to  others,  or,  to  use  a  simile,  they  may  be 
distinct  as  to  the  central  point  of  the  space  they  cover,  but 


i  It  requires  but  a  slight  acquaintance  with  comparative  philology  to  enable  us  to 
perceive  that  words,  for  the  most  part,  do  not  represent  distinct  thoughts,  but  only 
the  parts  into  which  a  thought  or  conception  has  been  divided  by  an  analytic  process. 
This  is  especially  true  of  modern  languages,  which  differ  from  their  mother- 
tongues,  classic  or  barbaric,  chiefly  in  the  extent  to  which  this  process  of  analysis 
has  been  carried.  No  mi-take  has  een  productive  of  more  confusion,  or  has  been 
more  frequently  taken  advantage  of  for  the  purposes  of  deceit  and  fallacy  than  the 
oversight  of  this  truth,  — the  assumption  that  each  word  in  a  sentence  must  have  a 
clear  and  complete  meaning,  independent  of  the  connection  in  which  it  stands.  It  is 
still  as  true  as  ever  that  the  sentence,  the  clause,  the  proposition,  are  the  units  of 
thought,  and  must  be  interpreted  as  units,  however  far  language  may  have  gone  in 
the  process  of  expressing  the  different  modifications  of  the  central  thought  by 
adjuncts  and  auxiliaries,  instead  of  case  endings,  and  the  like.  Sir  William  Hamilton 
has  pointed  this  out  with  his  usual  clearness  and  felicity :  — 

"You  are  not  to  suppose  that  the  mental  sentence  which  must  he  analyzed,  in 
order  to  be  expressed  in  language,  has  so  many  parts  in  consciousness  as  it  has 
words,  or  clauses,  in  speech ;  for  it  forms  one  organic  and  indivisible  whole.  To 
repeat  an  illustration  I  have  already  given,  the  parts  of  an  act  of  thought  stand  in 
the  same  relation  to  each  other  as  the  parts  of  a  triangle,  —  a  figure  which  we  cannot 
resolve  into  any  simpler  figure,  but  whose  sides  and  angles  we  may  consider  apart, 
and,  therefore,  as  parts;  though  the=e  are  in  reality  inseparable, being  the  necessary 
conditions  of  each  other."  Sir  \V.  Hamilton,  Eighth  Lecture  on  Logic,  vol.  III.,  p. 
133.— Ed. 


BERMENE1    MCS.  15 

become  less  so  the  farther  we  remove  from  that  centre, 
somewhat  like  certain  territories  of  civilized  people  bor- 
dering on  wild  regions.  This,  then,  would  be  a  necessary 
cause  of  ambiguity,  even  if  the  nature  of  things  and  ideas 
itself  were  not  such  that  mathematical  precision  becomes 
impossible,  except  in  mathematics  themselves.3  Absolute 
language,  by  which  is  meant  Language  which  absolutely 
expresses  all  that  which  is  to  be  expressed,  neither  more 
nor  less,  for  every  mind,  is  possible  in  mathematics  only  ; 
and  mathematics  move  within  a  narrow  circle  of  idea-.      It 


-  Mathematical  language.  It  maybe  questioned  whether  even  mathematical  terms 
do  not  constitute  an  apparent  ratber  than  a  real  exception  to  the  rule  that  all  lan- 
guage requires  interpretation.  The  simplicity  ami  exactness  of  the  notions  repre- 
sented by  such  terms  do,  indeed,  make  formal  interpretation  superfluous  when* 
they  are  used  with  scientific  accuracy  in  the  operations  of  the  science  to  which  they 
belong.  The  notion  of  a  straig  .1  line,  of  a  triangle,  of  a  eir<  .  .  of  the  number  thi 
or  thirty,  or  three  millions, is    0  precise  and  so  nan-".  I,  that  ii"  menial 

operation   can    possibly  increase  its    clearness   to  one  who    lias    once   corn 
grasped  it;  nor  could  any  such  operation  give  even  an  approxin      •  notion  of  it  i" 
one  who  has  not  so  grasped  it  already,  —  e.g.,  to  a  child,  or  (in  the     1       .f  the  higher 
numbers  at  least)  to  a  savage.    Still,  if  hermeneutics  be  the  science  by  which  we 
ascertain  the  meaning  of  all  signs,  — al  least,  of  all  words,— as  Dr.  Lieber  has  certainly 

shown  in  the  text  of  this  work,  then  the  mental  pr ss  by  which  we  represent  to 

our  own  consciousness  the  meaning  of  such  exact  terms  is  as  truly  a  process  of 
interpretation  as  the  construction  of  the  most  difficult  law ;  as  truly  such  in  kind, 
though  there  may  be  a  very  wide  difference  in  degree.  In  the  remark  in  the  text 
(which  is  repeated  once  or  twice  in  different  parte  of  the  volume),  ami  in  a  few  other 
passages,  Dr.  Lieber  -  id,  to  have  written  under  the  unconscious  milu- 

ence  of  the  older  doctrine,  which  be  himself  has  done  so  much  to  disprove,— the 
doctrine  that  interpretation  was  applicable  only  to  obscure  or  imperfect  text-,  and 
that  a  complete  and  perfect  expression  of  thought  by  signs  would  require  no  Inter- 
pretation. Had  his  attention  been  drawn  to  the  point,  he  would  no  doubt  have  been 
ready  to  admit  that  his  exception  of  mathematical  terms  was  inconsistent  with  his 
mam  doctrine,  and  that  such  terms,  though  involving  practically  the  Least  con- 
ceivable amount  of  interpretation,  do  still  in  theory  involve  it  Howeverthis  may 
be  as  an  abstract  question,  or  when  mathematical  term-  are  used  in  the  operations 
of  pure  science,  there  can  be  no  doubt  that  such  terms,  when  used  in  Law,  often 
require  interpretation  or  construction, and  are  as  capable  of  having  their  meaning 

modified  by  these  pr sses  as  any  other-.     Thus,  nui rs,  the   simplest,  most 

al. -trad,  and  most  generally  understood  of  all  term-  amoi 

sometimes  construed  to  mean  something  very  different  from  their  mathematical 
value.    A  familiar  example  is  found  in  the  case  of  Smith  v.  11'  &doL 

vherea"  thousand"  (rabbit-)  was  held  to  mean  twelve  hundred  when  used  in 
a  lea-e.  So,  "twenty-one-'  (years  of  age]  was  construed  to  mean  eighteen,  when 
another  statute  had  changed  the  period  of  majorityfrom  the  former  to  the  latter 
age.    Slater  v.  Cave,  3  Ohio  St.  SO.  —  E 1  >. 


16  HERMENEUTICS. 

matters  not  who  uses  language  ;  absolute  language  is  im- 
possible, so  soon  as  human  words  are  used,  be  the  speaker 
inspired  or  uninspired.* 

III.  Were  we  desirous,  therefore,  of  avoiding  every  pos- 
sible doubt,  as  to  what  we  say,  even  in  the  most  common 
concerns  of  our  daily  life,  even  if  we  pronounce  so  simple 
a  sentence  as  "  give  me  some  bread,"  endless  explanations 
and  specifications  would  be  necessary  ;  but  in  far  the  greater 
number  of  cases,  the  difficulties  would  only  increase,  since 
one  specification  would  require  another.  To  be  brief,  the 
very  nature  and  essence  of  human  language,  being,  as  we 
have  seen,  not  a  direct  communion  of  minds,  but  a  com- 
munion by  intermediate  signs  only,  renders  a  total  exclusion 
of  every  imaginable  misapprehension,  in  most  cases,  abso- 
lutely impossible. 

There  are  some  nursery  stories  representing,  to  the  great 
amusement  of  the  little  ones,  people  who  are  prompted  by 
a  pedantic  anxiety  to  speak  with  absolute  clearness,  and 
only  entangle  themselves  in  endless  explanations,  one  upon 
the  other,  until  the  whole  story  ends  with  an  utter  inability 
of  the  pedant  to  ask  for  the  commonest  thing,  and  he  dies 
of  hunger.  These  stories  are  founded  upon  the  principles 
touched  upon  above,  and,  though  but  nursery  tales,  they 
contain  a  truth  which  for  a  long  time  was  little  acknowl- 
edged in  the  drawing  up  of  laws,  wherein,  it  was  believed, 
explanation  and  specification,  piled  upon  explanation,  would 


*  The  reader  will  find  much  that  is  serviceable  for  the  understanding  of 
this  topic  in  Archbishop  Whateley's  Logic,  especially  in  the  second  half  of 
that  brief  work. 


HERMENE1  TICS.  17 

produce  greater  and  greater  clearness,  while   in  fact  they 

produced  greater  and  greater  obscurity.3 

IV.  Let  us  take  an  instance  of  the  simplest  land,  to 
show  in  what  degree  we  are  continually  obliged  to  resort 
to  interpretation.  By  and  by  we  shall  find  that  the  same 
rules  which   common   sense   teaches   every  one  to   use,  in 


\-  an  illustration  of  the  vanity  of  attempting,  by  a  more  multiplication  of 
words  ami  phrases,  to  obtain  precision,  we  may  take  the  following  extract  from  the 
finding  of  a  coroner's  inquest  upon  the  body  of  a  fireman  killed  June  14,  1838,  by 
the  explosion  of  the  boiler  of  the  steamer  Victoria,  on  the  river  Thames.  Omitting 
the  formal  commencement,  we  qnote  only  the  facts: — 

*  *  *  "On  the  Hth  day  df  .June,  in  the  year  aforesaid,  in  the  parish  aforesaid,  in 
the  county  aforesaid,  the  said  Andrew  Brown,  being  on  board  of  a  certain  steamboat 
called  the  Victoria,  which  was  then  and  there  floating  and  being  navigated  on  the 
Water  of  a  certainriver  called  the  river  Thames,  it  so  happened  thai  accidentally,  cas- 
ually, and  by  misfortune,  a  certain  boiler,  containing  water,  and  then  and  there  form- 
ing part  of  a  certain  steam-engine,  in  and  on  board  of  .said  steamboat,  and  attached 
thereto,  and  which  Baid  boiler  was  then  and  there  used  and  employed  in  the  working 
of  the  said  steam-engine,  for  the  purpose  of  propelling  the  said  steamboat  in  and 
along  the  said  river,  and  was  then  and  there  heated  by  means  of  a  lire,  then  and 
there  also  forming  part  of  the  said  steam  engine,  in  the  said  steamboat,  burst  and 
exploded,  and  then  and  there  became  dcrupt  and  broken,  whereby  and  by  means 
whereof  a  large  quantity,  to  wit.  ten  gallons  of  the  boiling  and  scalding  water  and 
steam,  then  and  there  being  within  the  cavity  of  the  said  boiler,  and  a  large  quan- 
tity, to  wit,  half  a  bushel  of  hot  and  burning  cinders  and  coal-,  forming  part  of  the 
Said  fire,  the  said  boiling  and  scalding  water  and  steam,  and  the  .-aid  cinders  and 
coals, being  then  and  there  used  and  employed  in  the  working  of  the  said  -team- 
engine,  accidentally,  casually,  and  by  misfortune,  were  cast,  thrown,  and  came  from 
and  out  of  the  -aid  boiler  and  steam-engine  \\  ith  great  force  and  violence  to,  upon 
and  against  tin-  face,  hands  *  *  *  of  him,  the  -aid  A.  i;. ;  whereby  he,  the  Baid 
A.  B.,  then  and  therej  received  in  and  upon  his  face  *  *  *  one  mortal  shock  and 
Concussion,  and  diver-  mortal  scalds  and  burns,  and  thereby  became  mortally 
Shaken,  scalded,  and  burned;  of  which  said  mortal  shock  and  concussion,  and  oi 
which  said  mortal  scald-  and  burns,  he,  the  said  Andrew  Brown,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  instantly  died.  And  so  the  jurors  name-,  do  say 
that  be.  the  Baid  A.  B.,  in  manner  and  by  the  means  aforesaid,  accidentally,  ca-ually, 
and  by  misfortune,  came  to  hi-  death,  and  not  otherwise." 

It  i-  interesting  to  find  that  all  this  verbiage  did  not  sufficiently  describe  the  cir- 
6u instances  for  the  purposes  of  the  law.  The  court  held  that  there  were  two  d< 
in  the  finding,  which,  though  technical  in  then:  nature,  must  be  held  fatal,  ace  irding 
to  the  known  rule-  of  pleading.  First,  there  wa-  no  lime  stated  for  the  explosion  of 
the  boiler  On  the  authority  of  Cotton's  case,  Cro.  Klu.  ;:i\  it  wa-  held  that  the 
date  with  which  our  extract  begins  only  ttxed  the  time  when  A.  B.  wa-  on  board  the 
steamer;  but  the  law  could  not  assume  that  that  wis  t iie  day  of  the  explosion! 
Secotul.  the  time  Of  A.  B.'S  death  wa-  not  given.  If  it  had  been  -aid  that  "  he  then 
died."  it  would  have  answered ;  but  instantly,  in  it-  "  more  natural  and  usual  sense, 
i>  instantly  after,"  it  may  be  the  next  day!  Such  was  Lord  Denman's  opinion  and 
that  of  the  whole  Court  of  Queen's  Bench.  Kegma  v.  Brownlow,  11  Ad.  &  E.  ll'.'-l'-'<» 
(lSa'J).  —  ED. 

2 


18  HERMENEUTICS. 

order  to  understand  his  neighbor  in  the  most  trivial  inter- 
course, are  necessary  likewise,  although  not  sufficient,  for 
the  interpretation  of  documents  or  texts  of  the  highest 
importance,  constitutions  as  well  as  treaties  between  the 

greatest  nations. 

Suppose  a  housekeeper  says  to  a  domestic  :  "  fetch  some 
soupmeat,"  accompanying  the  act  with  giving  some  money 
to  the  latter ;  he  will  be  unable  to  execute  the  order  without 
interpretation,  however  easy  and,  consequently,  rapid  the 
performance  of  the  process  may  be.  Common  sense  and 
good  faith  tell  the  domestic,  that  the  housekeeper's  meaning 
was  this:  1.  He  should  go  immediately,  or  as  soon  as  his 
other  occupations  are  finished  ;  or,  if  he  be  directed  to  do 
so  in  the  evening,  that  he  should  go  the  next  day  at  the 
usual  hour;  2.  that  the  money  handed  him  by  the  house- 
keeper is  intended  to  pay  for  the  meat  thus  ordered,  and 
not  as  a  present  to  him  ;  3.  that  he  should  buy  such  meat 
and  of  such  parts  of  the  animal,  as,  to  his  knowledge,  has 
commonly  been  used  in  the  house  he  stays  at,  for  making 
soups ;  4.  that  he  buy  the  best  meat  he  can  obtain,  for  a 
fair  price ;  5 .  that  he  go  to  that  butcher  who  usually  pro- 
vides the  family,  with  whom  the  domestic  resides,  with 
meat,  or  to  some  convenient  stall,  and  not  to  any  unneces- 
sarily distant  place  ;  6.  that  he  return  the  rest  of  the  money  ; 
7.  that  he  bring  home  the  meat  in  good  faith,  neither  adding 
any  thing  disagreeable  nor  injurious  ;  8.  that  he  fetch  the 
meat  for  the  use  of  the  family  and  not  for  himself.  Sup- 
pose, on  the  other  hand,  the  housekeeper,  afraid  of  being 
misunderstood,  had  mentioned  these  eight  specifications, 
she  would  not  have  obtained  her  object,  if  it  were  to  exclude 
all  possibility  of  misunderstanding.     For,  the  various  speci- 


iii.umkm.i  lies.  1'.' 

fications  would  have  required  new  one-.  Where  would  be 
the  end?  We  are  constrained  then,  always,  to  leave  a 
considerable  part  of  our  meaning  to  be  found  out  by  inter- 
pretation, which,  in  many  cases  must  necessarily  cause 
greater  or  less  obscurity  with  regard  to  the  exact  meaning, 
which  our  words  were  intended  to  convey.* 

Experience  is  a  plant  growing  as  slowly  as  confidence, 
which  Chatham  said  increased  so  tardily.  In  fact,  confi- 
dence grows  slowly  because  it  depends  upon  experience. 
The  British  spirit  of  civil  liberty  induced  the  English  judges 
to  adhere  strictly  to  the  law,  to  its  exact  expressions. 
This  again  induced  the  law-makers  to  be,  in  their  phrase- 
ology, as  explicit  and  minute  as  possible,  which  causes  such 
a  tautology  and  endless  repetition  in  the  statutes  of  that 
countrv  that  even  so  eminent  a  statesman  as  Sir  Robert 
Peel  declared,  in  parliament,  that  he  "  contemplates  no 
task  with  so  much  distaste  as  the  reading  through  an  ordi- 
nary act  of  parliament."  Men  have  at  length  found  out 
that  little  or  nothing  is  gained  by  attempting  to  speak  with 
absolute  clearness  and  endless  specifications,  but  that  human 
speech  is  the  clearer,  the  less  we  endeavor  to  supply  by 
words  and  specifications  that  interpretation  which  common 
sense  must  a'ive  to  human  words.  However  minutely  we 
may  define,  somewhere  we  needs  must  trust  at  last  to  com- 


*  This  truth,  appearing,  thus  stated,  as  a  mere  truism,  was  nevertheless 
greatly  forgotten  during  an  entire  period  of  our  struggling  race,  and  it 
was  a  great  step  which  Des  Cartes  made,  after  the  period  of  scholastic 
philosophy,  when  he  declared  that  there  was  no  use  in  attempting  to 
define  the  last  terms  and  those  words  which  every  one  understands. 
Locke  repeated  Des  Cartes's  saying,  but  we  fear  carried  its  application 
much  too  far.  In  this  as  in  all  other  spheres,  it  is  necessary  yet  difficult 
to  observe  the  just  mean. 


20  HEKMEJS'EUTICS. 

mon  sense  and  good  faith.  The  words  of  Sir  Robert  Peel, 
introductory  to  his  bill  for  amending  the  penal  code  of 
Great  Britain,  are  too  valuable  not  to  find  a  place  here. 
He  said  in  the  House  of  Commons :  — 

"  I  certainly  have  set  the  example  to  the  house,  of  draw- 
ing up  such  bills  for  the  future  in  an  intelligible  manner. 
Not  being  myself  a  lawyer,  and  possessing,  of  course,  no 
technical  knowledge,  I  do  confess,  sir,  that  there  is  no  task 
which  I  contemplate  with  so  much  distaste,  as  the  reading 
through  an  ordinary  act  of  parliament.     In  the  first  place, 
the  long  recapitulations,  the  tedious  references,  the  con- 
stant repetitions,  the  providing  or  designating  offences  and 
punishments  for  the  specific  case  of  men,  women  and  chil- 
dren, and  for  every  degree  and  relation  m  society,  and  the 
necessity  of  indicating  these  several  personages  and  matters 
by  as  many  appropriate  relations  and  designations  —  then 
the  confusion  resulting  from  the  attempt  to  describe,  and 
constantly  referring  to  many  different  descriptions  of  prop- 
erty.    Really,  sir,  all  these  various  repetitions,  recapitula- 
tions, and  references  are  so  tedious  and  so  perplexing,  that 
I,  for  one,  almost  in  variably  find  myself  completely  puzzled 
before  I  get  to  the  end  of  a  single  clause.     The  mode  I 
have  adopted  in  this  bill,  to  obviate  all  this  confusion  and 
uncertainty  [we  sec,  then,  that  the  attempt  at  being  abso- 
lutely distinct  leads  to  greater  uncertainty  instead  of  cer- 
tainty],  does    seem   to    me,  I    speak   it  with   submission, 
much  more  eligible  and  precise,  than  the  usual  phraseology 
adopted  in  these  acts,  and  might,  I  cannot  help  thinking, 
be  pursued  with  advantage  in  bills  which  may  be  brought 

in    hereafter." "Owing   to    the    various    lights    in 

which   I  have    considered   this  provision,   and   the    extent 
which  I  have  thus  oiven  to  the  bill,  I  am  afraid  it  will  be 


HERMENEUTIC8.  21 

impossible  to  frame  one  more  comprehensive."  So  far  Sir 
Robert.* 

The  fact  is  that  several  causes,  and  among  these  tin- 
spirit  of  liberty  and  its  concomitant  desire  of  having  a  gov- 
ernment of  law,  had  induced  the  English  to  aim  at  perfect 
or  absolute  perspicuity  in  their  laws,  even  to  the  exclusion 
of  interpretation  by  common  sense,  which  is  a  matter  01 
impossibility. f 

The  full  and  redundant  phraseology  of  Mr.  Burke's  will, 
by  which  he  wished  to  pass  his  property  to  his  wife  and  her 


*  To  the  testimony  of  Sir  Robert  Peel  we  may  add  that  of  Lord  John 
Russell.  When  he  was  prime  minister,  he  stated  (March,  1851)  in  the 
Commons,  on  his  bill  creating  additional  chancery  judges,  that  "  it  does 
not  require  so  high  an  officer  to  superintend  bills,  and  see  that 
their  language  is  concise  and  correct;  moreover,  I  must  say,  that  I  never 
perceived  the  great  lawyers  in  Parliament,  with  all  their  acuteness  In  the 
prosecution  of  reform  in  the  law,  so  clever,  when  they  come  to  put  their 
views  into  shape  as  the  practical  men  whose  official  business  it  is  to  pre- 
pare and  revise  the  measures,  that  are  brought  before  parliament  — as  for 
example,  Mr.  Gregson,  who  assisted  in  the  preparation  of  the  Reform 
Bill,  or  as  the  present  most  able  parliamentary  assistant  of  the  Govern- 
ment, Mr.  Cowlson." 

t  This  induced  the  English,  at  an  early  period  to  abate  the  evil  of  pro- 
lixity. Lord  Keeper  Coventry  (who  died  1679)  made  several  ordinances 
against  prolixity  of  bills,  answers,  replications,  etc.— "an  evil,"  says  Lord 
Campbell,  now  (1860)  Lord  Chancellor  "which  will  last  while  the  remu- 
neration of  the  lawyers  is  regulated  by  the  length  of  the  written  proceed- 
in--."  Lives  of  the  Chancellors,  vol.  11.,  p.  5-10.  Yet  the  difficult]  ol 
framing  a  law,  which,  any  day,  may  become  a  rule  by  which  we  have  to 
decide  lor  or  againsl  a  man,  is  strikingly  exemplified  by  the  tact  that  Lord 
Loughborough  (Mr.  Weddcrburn  |  after  having  been  Lord  <  Ihanccllor,  dr.  w 
up  a  law  against  young  men  of  fortune  granting  annuities  in  their 
minority  to  the  ruin  of  their  fortunes.  The  act  was  repealed  on  account  of 
inaccuracy  of  wording,  and  the  repealing  statute  has  been  explained  bj 
three  subsequent  acts,  "and  even  yel  stands  in  need  of  further  revision." 
Lives  of  Eminent  Judges  by  Lord  Campbell,  London.  1846,  vol.  I.,  p.  221. 


22  HERMENEUTICS. 

heirs,  with  the  codicil  of  July  30,  1795,  is  another  instance 
of  the  fact  that  we  do  not  arrive  at  great  perspicuity  by 
going  beyond  a  certain  limit ;  and  this  limit  is,  where  plain 
common  sense  must  begin  to  interpret,  that  is,  where  we 
must  begin  to  give  to  words  that  meaning,  which,  according 
to  plain  common  sense,  they  ought  to  have. 

The  more  we  strive  in  a  document  to  go  beyond  plain 
clearness  and  perspicuity,  the  more  we  do  increase,  in  fact, 
the  chances  of  sinister  interpretation. 

V.  Words  themselves,  as  was  indicated,  may  have  an 
ambiguous  signification  :  this  arises  from  different  causes. 

1.  The  objects  of  the  physical  world  are  not  so  distinctly 
defined  from  each  other  as  they  appear  to  be  at  first  glance. 
Innumerable  transitions  exist  between  them.  To  this  day, 
no  naturalist  has  yet  succeeded  in  giving  an  entirely  satis- 
factory definition  of  the  word  plant,  which,  as  every  true 
definition  ought  to  do,  includes  the  signs  characteristic  of 
all  individual  specimens  called  Plants,  and  extends  no 
farther,  or  absolutely  excludes  every  thing  else.  The  law- 
givers of  all  countries  have  found  it  a  difficult  task  to  give 
an  exact  legal  definition  of  the  word  Arms,  and  one  still 
more  difficult,  to  define  the  terms  defensive  and  offensive 
arms.  In  a  criminal  lawsuit  one  credible  witness  testified 
that  he  had  seen  a  bench  in  a  certain  room  covered  with 
blood  ;  another,  equally  credible,  stated  upon  oath  that  he 
had  seen,  in  the  same  room,  a  table  and  no  bench,  soiled 
with  blood.  The  fact  was,  that  the  object  sworn  to  was, 
considered  as  a  bench,  unusually  high  and  wide  ;  consid- 
ered as  a  table,  low  and  narrow. 

2.  Ideas  relating  to  the  invisible  world  flow  still  more 
one  into  another  ;  not  always  from  want  of  words,  but  fre- 


HEEMEN  EI    PICS. 


23 


quently  on   account  of  the  gradual   transitions    from    one 
extreme  to  another.     Even  sensations  are  not   absolutely 

divided  by  a  line  of  demarcation;  the  highest  delight  bor- 
ders on  pain. 

3.  Words  themselves  mean   different   things,  sometimes 

more,  sometimes  less  connected  with  each  other;  or  they 
do  not  signify  the  thing,  or  idea  to  be  named,  with  sufficient 
precision.  This  is  owing,  among  other  reasons,  to  the  fact, 
that  most  words  expressive  either  of  abstract  ideas,  or  sub- 
jects belonging  to  the  invisible  world,  are  faded  tropes, 
that  is,  words  meaning  originally  objects  of  the  sensible 
world,  but  which  are  now  applied  to  the  intellectual.  In 
many  cases,  therefore,  different  people  do  not  connect 
exactly  the  same  ideas  with  the  same  words,  although  they 
may  be  used  everywhere. 

4.  Words  may  have  a  distinct  meaning  and  be  used  with 
clearness  at  the  time,  but  the  class  of  things  to  which  they 
relate  may  change.  It  may  be  perfectly  distinct  to  use  the 
word  Dagger,  at  a  certain  period,  but  the  subsequent  intro- 
duction of  large  clasp  knives  makes  the  term  less  distinct. 
The  relation  of  things  changes  after  the  word  has  been 
formed  and  used,  which  necessarily  affects  the  meaning. 
The  term  Highway  is  used  in  ancient  laws,  before  the 
invention  of  railways.    Are  they  highway.-?  *  4 


*  New  inventions,  customs,  new  branching  out  of  Ideas,  the  progress 
of  civilization  expand  and  contract  the  meaning  of  words.  If  it  were  not 
so,  language  would  not  be  a  lit  means  of  communication,  nor  could  it 
last  as  a  whole  from  generation  to  generation.  Few  things  are  more 
interesting  than  the  history  of  important  words,  ami  the  variety  oi  mean- 
ings they  assume;  but  all  this  implies  ambiguity  at  certain  periods  and 
for  certain  words. 

♦  The  question  proposed  by  the  author  has  been  answered  directly,  and  In  the 
negative,  by  the  following  case:   "A  railroad  is  not  a  '  highway  '  in  the  sense  of  that 


2i  HERMENEUTICS. 

5.  A  similar  remark  applies  to  terms  designating  ideas. 
No  word  has  claimed  more  attention  than  the  term  Sover- 
eignty,5 within  the  last  century  and  a  half.  Yet  its  meaning 
has  all  the  time  been  changing  or  has  hardly  ever  been 
used  with  any  detiniteness,  although  always  on  highly 
important  occasions. 

VI.  The  person,  who  endeavors  to  convey  some  mean- 
ing to  us,  may  not  use  the  proper  means. 

1.  He  may  be  illiterate  and  not  use  the  words  in  their 
most  proper  or  generally  adopted  meaning. 

2.  He  may  not  be  sufficiently  trained  in  grammar  and 
syntax,  to  know  the  different  signification  and  effect  which  a 
word  acquires  by  a  different  position. 

3.  He  may  speak  or  write  on  the  spur  of  the  moment,  or 
in  great  excitement,  and  not  be  able  to  select  those  means 
of  conveying  his  ideas,  which  calm  deliberation  would  have 
suggested. 


word  as  used  in  the  North  Carolina  Revised  Code,  chap.  34,  §  2,  punishing  with  death 
robbery  in  or  near  a  highway."  The  State  v.  Johnson,  Phill.  L.  HO.  But,  for  most 
purposes,  railways  no  doubt  are  highways.  See  an  article  in  American  Law  Register 
(o.  s.),  vol.  VIII.,  p.  13S,  "Are  Railroads  Highways?"  That  railways  are  but  improved 
highways,  and  are  of  such  public  use  as  to  justify  the  exercise  of  the  right  of  eminent 
domain  by  the  sovereign  in  their  construction,  is  now  almost  universally  conceded. 
1  Redf.  on  Rys.  229,  note.  The  authorities  to  this  point  are  too  familiar  to  need 
citation.  But  it  does  not  follow  that  the  two  terms  are  synonymous  in  other 
applications.  This  is  shown  by  the  many  decisions  that  the  construction  of  a 
railway  upon  the  surface  of  a  highway  is  a  new  use,  or  appropriation  of  the  soil, 
and  entitles  the  owner  of  the  fee  to  additional  compensation.  Cox  v.  Louisville, 
etc.,  R.  Co.,  48  Ind.  178.  There  are  many  other  cases  to  this  point,  and  almost 
as  many  contra;  but  the  very  existence  of  the  question  shows  that  the  word 
highway  cannot  be  interpreted  to  include  railway  in  all  cases,  i.e.,  that  the  question 
suggested  in  the  text  does  not  admit  of  a  categorical  answer.  In  the  article  in  the 
American  Law  Register,  vol.  VIII.  (o.  S.),  pp.  13S,  259,  the  question,  "Are  Railroads 
Highways?"  is  discussed,  and  the  following  conclusions  reached:  1.  A  railroad 
corporation  has  a  legal  estate  in  the  soil  of  the  road.  2.  That  estate  is  subject  to 
the  public  easement.  3.  The  corporation  is  intrusted  with  the  care  and  direction 
of  the  easement.  In  support  of  the  doctrine  that  they  are  highways,  are  cited  King 
v.  Severn  &  Wye  R.  Co.,  2  Barn.  &  Aid.  646;  Bonaparte  v.  Camden  &  Amboy  R.  Co.,  1 
Baldw.  C.  Ct.  203;  Railroad  Co.  v.  Ohappell,  Rice  (So.  Car.),  383.  Contra,  5  Ired.  L. 
307;  9Smed.  &  M.  431.  —  Ed. 

6  See  Additional  Note  D,  on  the  term  Sovereignty.  —Ed. 


HEBMENEUTIC8.  25 

4.  He  may  be  sick  or  dying,  and  not  be  as  fully  master 
of  the  means  of  expression,  as  he  was  in  a  healthy  state. 
This  is  not  unfrequently  the  case  with  regard  to  wills,  dic- 
tated in  haste,  or  merely  pronounced  in   the   presence   of 

witnesses,  which  oral  wills  arc  valid  in  sonic  countries  with 
certain  restrictions,  and  are  known  to  the  common  law  as 
nuncupative  wills. 

VII.  We  may  not  be  fully  acquainted  with  the  precise 
meaning,  which  the  members  of  a  certain  sect,  profession 
or  trade,  or  the  inhabitants  of  certain  parts  of  a  country 
may  attach,  or  which  at  certain  periods  of  history  may 
have  been  attached,  to  certain  terms.  Or  it  may  have 
become  necessary  to  apply  established  words  to  new  idea-, 
as  was  the  case  with  many  Greek  words  when  used  by 
Paul,  or  other  early  Christians;  or  as  is  the  case  with  the 
word  Travelling  since  the  invention  of  steam  cars.  Some 
commentators  say  travelling  includes  travelling  by  land 
or  water,  on  foot,  on  any  animal,  or  drawn  or  supported 
by  any  animal.  The  word  travelling,  therefore,  if  used 
in  a  law,  for  instance,  in  a  penal  law,  which  provides 
peculiar  protection  for  travellers,  may  require  interpre- 
tation since  the  introduction  of  travelling  by  steam.  The 
counsel  of  a  prisoner  charged  with  a  crime  on  the  high- 
way might  argue,  that  severer  penalties  arc  inflicted  for 
crimes  of  this  class  only  on  account  of  the  traveller's 
distance  from  people  who  might  assist  him,  as  would  be 
the  case  in  a  populous  place,  but  that  on  railroads,  a 
large  number  of  people  always  travel  together,  and  hence 
the  law  need  not  afford  additional  protection,  which  in 
this    case    being   greater    severity,    ought    not    to    be    fur- 


26  HERMENEUTICS. 

nislied.  Indeed,  it  might  be  of  very  great  importance, 
and  yet  not  so  easy  to  determine,  because  the  life  of 
an  individual  may  depend  upon  it,  whether  railroads  are 
highways  in  the  meaning  of  the  penal  law.6 

There  are  many  words  used  by  some  religious  sects  or 
communities  in  America,  in  a  manner  in  which  they  are 
not  common  with  the  community  at  large.  Other  words 
again  have  not  acquired  with  the  people  themselves  a 
perfectly  definite  meaning.  Not  long  ago,  an  individual  in 
in  New  England  left  a  legacy  for  the  benefit  of  the  poor 
of  his  place,  but  only  to  those  poor  who  are  of  "the 
household  of  faith."  See  John  Pickering's  Lecture  on 
the  alleged  Uncertainty  of  the  Law,  Boston,  1834.  This 
expression  has  either  not  acquired  a  very  definite  mean- 
ing with  the  people,  who  use  it ;  or  if  it  have,  those  who 
do  not  use  it  by  way  of  sectarian  terminology  are  unable 
to  connect  an  idea  with  it,  so  clear  as  to  allow  of  legal 
action.7 


6  See  13 receding  note  (4).  —  Ed. 

'  In  Gass's  Appeal,  73  Pa.  St.  39, 13  Am.  726  (1873) ,  the  meaning  of  the  term  "  divine 
service"  (or,  in  the  German  original  of  the  contract,  Gottesdienst)  was  in  question, 
and  it  was  held  not  to  include  a  Sunday-school.  Two  congregations,  one  of  the 
German  Reformed,  and  one  of  the  Evangelical  Lutheran  Church,  had  united  in 
building  a  church  for  their  common  use.  They  had  also,  for  a  time,  had  a  union 
Sunday-school  in  a  school-house  near  by.  Afterward  the  Lutherans  withdrew  from 
this,  and  established  a  Sunday-school  of  their  own  in  the  church,  in  opposition,  and 
without  the  consent  of  the  Reformed  congregation.  Upon  a  bill  filed  by  the  latter  to 
enjoin  them  from  using  the  church  for  that  purpose,  the  court  held  that,  as  Sunday- 
schools  were  not  in  existence  or  thought  of  in  the  neighborhood,  when  the  agree- 
ment was  made,  the  injunction  should  be  granted. 

"It  is  the  duty  of  courts  to  interpret  the  language  of  written  instruments;  but,  in 
doing  this,  they  always  follow  the  meaning  attributed  to  the  terms  by  those  whose 
custom  it  is  to  use  them.  Therefore,  when  a  contract  is  capable  of  two  different 
interpretations,  that  which  the  parties  themselves  have  always  put  upon  it,  and 
acted  upon,  especially  as  here,  for  a  long  series  of  years,  a  court  will  follow,  because 
it  is  the  true  intent  and  meaning  of  the  parties  which  are  to  be  sought  for  in 
the  language  they  use.  However  right  it  may  be  to  view  the  Sunday-school  as  a 
most  useful  institution,  in  instructing  youth  in  the  knowledge  and  worship  of 
God  and  their  duties  to  mankind,  this  praiseworthy  view  cannot  change  a  written 


BDEEMENE1  TICS.  27 

VIII.  We  may  not  be  fully  acquainted  with  the  lan- 
guage in  which  something  La  written,  with  the  precise 
healing  or  shade  of  meaning  which  certain  word-  have 
in  a  foreign  idiom  or  had  in  that  language,  at  a  par- 
ticular period,  or  with  a  particular  author. 

The  person  who  -peaks  or  writes  may  not  be  decidedly 
clear  himself  on  what  he  speaks  or  writes  ;  he  may  not 
be  fully  master  of  the  subject.  His  idea-,  therefore,  may 
yet  be  vacillating,  so  that  the  different  parts  of  what  he 
utters  are  not  strictly  consistent  with  one  another. 

It  may  be  the  intention  of  the  speaker  or  writer  not 
to  speak  plainly,  from  kindness,  fear,  cunning,  malice, 
caution,  as  in  times  of  war  or  revolution,  or  any 
other  motive.  He  may  be  desirous  of  leaving  to  him, 
whom  he  addresses,  a  choice  of  means  or  actions  ;  or  he 
may  purposely  express  himself  vaguely,  so  that  at  some 
future  period  he  may  be  at  liberty  to  resort  to  one  or 
the  other  meaning,  according  to  convenience  or  interest. 

IX.  Decorum,  especially,  may  be  the  reason  for  not 
expressing  ourselves  so  plainly,  as  a  knowledge  of  the 
subject  and  mastery  of  the,  language  would  otherwise 
enable  us  to  do.* 


*  Thus  the  Prussian  Code,  Vol.  ii.  Tit.  xx.  10f>9,  says:  — 

"Ami  other  unnatural  sins  of   a  similar  kind,  which  cannot  be 

contract.  AVe  cannot  engraft  on  a  contract  for  one  thing  an  agreement  for  a  differ- 
ent thing,  though  the  fruit  of  the  scion  be  even  better  than  that  of  the  natural  stock. 
"These  congregations  never  so  understood  or  acted  upon  their  agreement  of 
union.  They  built  their  church  for  divine  worship,  by  prayer,  praise,  ami  the 
preaching  of  God's  word,  its  use  was  to  be  congregational  worship,  not  school 
instruction.  Their  worship  was  to  be  led  by  pastors,  who  should  regulate  their 
appointments  in  due  regard  to  mutual  harmony,  and  was  not  to  be  the  instruction 
of  youth,  even  though  part  of  it  were  in  divine  things,  led  by  individual  laymen- 
There  are  reasons,  also,  why  a  chamber  or  audience-room  dedicated  to  public, 
congregational  worship,  should  not  be  thrown  open  to  thoughtless,  giddy,  some- 
times vicious  youths,  to  deface  and  soil  it." —  Ed. 


28  HERMENEUTICS. 

X.  It  may  be  the  object  of  the  utterer,  to  clothe  the 
true  sense  in  various  tropes,  in  metaphors,  allegories,  as 
poets  frequently  do.  Or  it  may  not  be  possible  to  express 
what  we  wish  to  say,  in  any  better  way,  than  by  an  approx- 
imation to  it,  by  way  of  tropes  or  other  figurative  language. 

The  speaker  or  writer  may,  purposely  or  involuntarily, 
use  such  words  as  would  express  far  more  than  his  calm 
and  settled  opinion,  were  they  to  be  taken  literally,  or 
were  not  great  deduction  to  be  made  from  them. 

We  may  be  but  imperfectly  or  not  at  all  acquainted  with 
the  subject,  to  which  the  words  of  the  discourse  relate,  for 
instance  to  customs,  persons  or  events  of  nations  removed 
from  us  at  a  great  distance  either  by  space  or  time. 

The  speaker  or  writer  may  not  have  the  opportunity  of 
acquiring  a  perfect  knowledge  of  the  subject  he  treats  of, 
as  was  the  case  with  many  ancient  grants. 

If  a  text  is  obscure  from  the  loss  or  interpolation  of 
certain  passages,  it  is  not  by  interpretation  that  we  can 
remedy  the  evil,  as  will  appear  from  the  definition  which 
has  been  siven. 


mentioned  here  on  account  of  their  vileness,  demand  an  ntter  extinction 
of  their  memory."  That  the  reader  may  not  misunderstand  the  expres- 
sion "utter  extinction,"  I  will  add  that  the  criminal,  besides  his  other 
punishment,  is  banished  forever  from  the  place  of  his  former  residence, 
where  his  crime  has  become  known. 

Pope  Innocent  III.,  writing  against  the  abominable  and  indecent 
swearing  in  France  in  the  thirteenth  century,  and  threatening  his  dis- 
pleasure, says  in  his  letter:  "they  utter  things  in  their  oaths  which 
we  cannot  mention."  Innocentii  III.  Epistolse,  Balusii  ed.,  Tom.  II. 
p.  735. 

In  the  Laws  of  Menu,  son  of  Brahma,  translated  by  Sir  William 
Jones,  is  this  passage:  "except  those  whose  crimes  are  not  fit  to  be 
named."  Paragraph  275  in  the  Laws  &c.  p.  41,  vol.  8,  of  Sir  William 
Jones's  works,  London,  1807. 


HERMENE1  TICS.  29 

XI.  It  appears,  then,  from  the  foregoing  remarks,  that 
obscurity  of  sense  may  arise,  from  a  want  <>!'  knowledge  of 
the  subject  either  in  the  speaker  or  hearer,  the  writer  or 
reader;  or  from  an  imperfeel  knowledgfe  of  the  means  of 
communication,  again,  either  in  the  speaker  or  writer,  on 
the  one  hand,  or  the  hearer  or  reader  on  the  oilier.  And 
farther,  that  interpretation  of  some  sort  or  other  is  always 
requisite,  whenever  human  language  is  used;  because  no 
absolute  language,  by  which  is  meant  that  mode  of  ex- 
pression which  absolutely  says  all  and  every  thing  to  be 
said  and  absolutely  excludes  every  thing  else,  is  possible, 
except  in  one  branch  of  human  know  ledge,  namely,  mathe- 
matics.8 Owing  to  the  peculiar  character  of  this  science, 
its  terms  express  the  precise  idea  to  be  expressed,  neither 
more  nor  less.  Its  language  is  always  sufficient  for  the 
subject  it  treats  of,  because  it  proceeds  in  inventing,  and 
has  to  do  with  the  understanding  alone,  but  not  Avith  the 
subjects  of  real  life,  nor  with  the  feelings,  the  nobler 
reasoning  powers,  the  many  interests  and  motives  of  man, 
the  lowness  or  the  elevation  of  the  human  soul,  and  their 
thousand  intricate  ramifications. 

If  it  is  certain  that  interpretation  of  some  sort  or  other 
cannot  be  dispensed  with,  wherever  human  language  is 
used,  except  in  mathematics,  the  necessarj  consequence 
will  be,  that  we  have  to  ascertain  the  principles  of  true  and 
safe  interpretation.  Important  as  it  is  in  all  spheres  of 
human  activity  or  knowledge,  it  is  peculiarly  so  where 
written  rules  of  action  are  given,  as  in  religious,  moral,  or 
political    codes,    laws,    wills,    contraets,    and     treaties,    or 


8  See  note  (■'),  ante,  \>.  L5. 


30  HEEMENEUTICS. 

when  works  or  documents  of  distant  tribes  or  by-gone  ages 
lie  before  us  ;  that  is,  in  history  and  philology 

XII.  It  has  not  escaped  the  observation  of  the  lawgivers 
of  different  nations,  that  owing  to  the  different  interpreta- 
tion, put  upon  the  same  laws,  much  vexation  and  trouble 
arise.  In  fact,  the  "  uncertainty  of  the  law,"  which  orig- 
inates in  a  great  measure  from  the  different  interpretation 
to  which  one  and  the  same  law  may  be  subject,  has  become 
proverbial.  It  has  been,  therefore,  the  anxious  desire  of 
several  well-disposed  legislators  to  avoid  interpretation  and 
consequent  commentaries,  by  framing  codes  of  law  which 
should  be  so  complete  and  exact  as  to  render  interpretation 
superfluous.  To  diminish  litigation,  and  to  make  lawyers 
comparatively  useless,  was  one  of  the  objects  of  the  Prus- 
sian code,  promulgated  by  Frederic  the  Great.  Napoleon 
said,  according  to  the  Memorial  de  St.  Helene,  by  Las 
Casas,  that  he  once  entertained  the  idea  that  all  principles 
of  law  might  be  reduced  to  a  few  concise  forms,  which 
ouo-ht  to  be  combined  according  to  fixed  rules,  similar  to 
those  of  mathematics ;  and  that  thus  simplicity  and  cer- 
tainty of  law  might  be  established.  He  soon,  however, 
gave  up  the  idea,  when  he  came  to  discuss  the  various  parts 
of  the  French  civil  code  with  the  other  members  of  the 
committee  appointed  to  draw  up  that  work.  In  Bavaria, 
commentaries  on  the  penal  code  are  actually  prohibited. 
With  true  wisdom  did  the  government  of  that  country 
officially  publish  the  motives,  explanations,  &c,  which  were 
o-iven  in  the  course  of  the  discussions  in  the  king's  privy 
council,  for  adopting  the  various  laws.  They  have  been 
drawn  up  and  reduced  to  a  systematic  whole,  published  in 


HERMENEUTIC8.  31 

three  volumes,  Munich,  1813  and  181-1.  Bui  it  was  doI 
equally  wise  to  prohibit  commeutaries  ;  for  those  who  advised 
the  king  so  to  do,  forgot,  that  as  they  felt  bound  to  explain 
the  various  provisions  of  the  code,  so  would  their  own 
explanations  again  carry  along  with  them  the  necessity  of 
interpretation,  simply  because  drawn  up  in  human  language, 
though  avc  willingly  allow,  not  in  the  same  degree  with  the 
briefer  code.  No  code  can  possibly  provide  for  all  specific 
cases,  which  generally  consist  of  a  combination  of  simple 
elements  ;  nearly  every  case  in  reality  is  a  complex  one, 
because  the  various  relations  of  men  are  forever  changing. 

This  remarkable  prohibition  of  commentaries  in  Bavaria, 
is  to  be  found  in  the  royal  mandate  of  October  19,  1813,  by 
Maximilian  Joseph,  to  all  the  courts  of  appeal,  printed 
before  the  Notes  to  the  Penal  Code  for  the  kingdom  of 
Bavaria,  according  to  the  Protocols  of  the  royal  Privy 
Council,  3  vols.     Munich,  1813,  1814.     It  reads  thus  :  — 

"We,  therefore,  direct  you,  with  regard  to  all  points 
which  depend  upon  the  interpretation  of  the  penal  code, 
the  sense  and  motive  of  a  legal  distinction,  and  the  princi- 
ples of  their  application,  to  refer  to  the  notes,  and  expressly 
to  mention  the  respective  passage  of  the  notes  should  you 
have  to  make  any  report  for  inquiry  as  to  a  doubtful  point. 
And  it  is  our  express  order,  that  besides  this  exposition, 
ordered  by  ourselves,  no  officer  of  the  state,  or  private 
scholar,  shall  publish  a  commentary  on  the  penal  code,  and 
that  the  courts,  in  trying  and  judging  penal  eases,  as  well 
as  the  professors  of  our  Universities  in  their  lectures,  shall 
rely  exclusively  on  the  text  of  the  code  with  reference  to 
the  notes,  so  that  the  penal  code  be  applied  and  taught  in 
the  same  spirit  in  all  parts  of  our  kingdom,  and  according 


32  HERMENEUTICS. 

to  that  which  we  have  been  pleased  to  ordain  and  explain." 
Still  the  royal  mandate  continues  immediately  thus  :  — 

"We  charge  you  carefully  to  collect  that  which,  in 
occurring  cases,  may  appear  to  you  especially  important 
or  doubtful,  and  to  send  the  same,  at  the  conclusion  of  the 
first  year  directly  to  us,  with  remarks  upon  it." 

In  a  similar  spirit,  and  with  equally  good  intention,  it 
was  formerly  not  considered  advisable,  in  Prussia,  to  allow 
professors  of  law  to  lecture  in  the  Universities  on  the  code, 
for  fear  that  scientific  comments  should  lead  to  perplexity, 
and  thus  defeat  one  of  the  main  objects  of  the  code  — 
simplicity  of  law.  Mr.  de  Savigny  was,  I  believe,  the  first 
Prussian  jurist,  who  delivered  lectures  on  the  code  of 
Frederic ;  he  began  them  about  the  year  1819,  if  I  recol- 
lect right. 

XIII.  It  would,  indeed,  be  a  subject  greatly  to  be 
deplored  if  it  were  possible — happily  it  is  not — to  produce 
a  code  so  constructed  as  to  be  closed  forever.  It  is  one  of 
the  most  efficient  agencies  in  the  civil  progress  of  a  nation, 
that,  certain  principles  being  established,  they  should  be 
left  to  unfold  themselves  gradually,  and  to  be  expanded, 
modified,  and  limited,  by  the  civil  action  of  the  nation 
itself,  by  the  practical  political  intercourse  of  society.9     On 


9  It  is  almost  impossible  to  exaggerate  the  beneficial  influence  upon  our  common 
law  of  that  principle  of  gradual  development  to  which  the  author  here  refers,  and 
which  has  been  happily  described  in  the  following  passage,  by  one  of  the  ablest 
judges  that  ever  sat  upon  the  Federal  bench:  — 

"If  it  were  possible  to  define  what  it  is  for  a  State  to  deprive  a  person  of  life, 
liberty,  or  property,  without  due  process  of  law,  in  terms  which  would  cover  every 
exercise  of  power  thus  forbidden  to  the  State,  and  exclude  those  which  are  not,  no 
more  useful  construction  could  be  furnished  by  this,  or  any  other  court,  to  any  part 
of  the  fundamental  law. 

"But,  apart  from  the  imminent  risk  of  a  failure  to  give  any  definition  which  would 
be  at  once  perspicuous,  comprehensive,  and  satisfactory,  there  is  wisdom,  we  think, 


HERMENE1    riCS.  33 

tliis  subject  more  will  be  said  hereafter;  in  the  present 
place  I  beg  only  to  add,  in  order  not  to  be  misunderstood, 
that  I  am  as  zealous  an  advocate  of  the  certainty  of  law  as 
any  citizen  can  be,  who  loves  clear  right,  and,  therefore,  is 
anxious  to  know  it.  For  this  reason,  in  part,  I  am  endeav- 
oring to  establish  principles  of  interpretation,  or  to  make 
them  known  in  a  wider  circle.  I  hold  myself  fully  con- 
vinced of  the  great  benefit  which  a  wise  code  may  bestow 
Upon  a  nation,  if  made  at  the  proper  period  of  maturity 
of  a  nation  for  that  purpose;  if  it  contain  the  essence, 
the  settlement,  perfection,  improvement,  and  expansion,  of 
the  law,  already  existing  in  some  shape,  way,  or  form,  and 
he  not  a  futile  invention  of  the  closet;  and  if  the  law- 
makers do  not  believe  thereby  to  forestall  all  future 
expansion  of  the  law.  A  code  is  not  a  herbarium,  in 
which    we   deposit   law  like   dried   plants.     Let  a  code   be 


in  tin'  ascertaining  of  the  intent  and  application  of  such  an  important  phrase  in  the 
Federal  Constitution,  by  the  gradual  process  of  judicial  inclusion  and  exclusion,  a? 
the  cases  presented  for  decision  shall  require,  with  the  reasoning  on  which  such 
■decisions  may  be  founded.  This  court  is,  after  an  experience  of  nearly  a  century, 
still  engaged  in  defining  the  obligation  of  contracts,  the  regulation  of  commerce, 
and  Other  powers  conferred  on  the  Federal  government,  or  limitation-  imposed  upon 
the  states."    Per  Miller,  J.,  in  Davidson  v.  New  Orleans,  96  CJ.S.97,  104.      : 

"  We  have,  perhaps,  an  almost  superstitious  respect  for  the  method  in  which  our 
Jurisprudence  has  been  built  up  out  of  actually  litigated  cases,  as  distinguished 
from  the  speculations  and  reasonings  of  the  Roman  and  continental  jurists.  No 
new  doctrine-,  not  even  the  simplest  application  of  one.  has  been  added  to  the 
edifice  until  it  had  been  called  for,  and  its  necessity  proved  by  some  actual  contro- 
versy between  man  and  man.     ThUS,  its  coin  pie  1  cue--  and  Stability  have  been  insured 

by  what  has  well  been  termed  'the  remorseless  logic  of  (acts.1  No  single  mind, 
however  far-seeing  and  comprehensive,  has  been  able  to  build  up,  in  advance  "f 
■occupation,  to  suit  its  own  notions  >>i  symmetry.  Thereare  some  who  regret  this, 
and  consider  the  ever  rough  and  unfinished  outline  of  our  legal  ->  stem  to  be  a  defect : 
bui  to  us  a  seems  inseparably  connected  with  its  merit  as  the  besl  law  undTsr  whicb 
a  free  people  ever  lived.  Who  can  tell  in  what  net  of  legal  principles  we  should 
find  ourselves  enmeshed,  if  the  sages  of  the  fourteenth,  the  seventeenth,  or  the 

eighteenth  Century  COUld  have  decided  our  probable  cases    in   advance    for  u-:-     And 

we  owe  it  to  our  successors  not  t"  deprive  them  of  the  same  freedom  we  enjoy.    If  a 

question  yet  remains  undecided,  let  it  be  so  till  it  is  asked  m  a  manner  to  prove  that 
it  needs  deciding.  Do  not  commit  the  law  in  advance  to  a  particular  view,  merely 
for  the  sake  of  rounding  out  our  theory."     West.  Jur.,  vol.  II.,  p.  nil,  February,  1608. 

3 


34  HERMENEUTICS. 

the  fruit  grown  out  of  the  civil  life  of  a  nation,  and  contain 
the  seed  for  future  growth.  The  impossibility  of  closing 
as  it  were,  the  law,  has  already  been  acknowledged.  In 
France,  and  in  Prussia  many  large  complements  (Ergan- 
zungen)  have  been  officially  published,  and  are  annually 
adding  to  the  code. 

Never  has  interpretation  been  dispensed  with ;  never 
can  it  be  dispensed  with.  This  necessity  lies  in  the 
nature  of  things,  of  our  minds  and  our  language ;  and 
in  those  countries  where  codes  have  been  established, 
as  in  France,  Bavaria,  Austria,  Prussia,  &c,  some 
authority  is  always  designated  from  which,  in  doubtful 
cases,  explanations  shall  be  obtained ;  as  the  council 
of  state,  the  minister  of  justice,  or  some  law  committee 
appointed  for  that  purpose. 

XIV.  The  Austrian  civil  code,  introduction,  para- 
graph 8,  says,  "The  lawgiver  alone  has  the  authority 
of  giving  an  interpretation  of  general  and  binding 
authority.  An  interpretation  of  this  sort  is  to  be  applied 
to  all  cases  yet  to  be  decided,  if  the  lawgiver  does  not 
add  expressly,  that  his  interpretation  shall  not  apply  to 
the  decision  of  those  cases  which  treat  of  actions  done, 
or  rights   claimed,  before  the  interpretation  took  place." 

The  Prussian  code  says,  in  the  introduction,  para- 
graph 47,  "If  the  judge  finds  the  proper  sense  of  the 
law  ambiguous,  he  has  to  inform  the  law  committee  of 
his  doubts,  and  to  ask  for  its  decision,  without,  however, 
mentioning  the  litigating  parties."  Paragraph  48,  "The 
judge  of  inquiry  is  bound  to  found  his  decision  in  the 
case    upon    the    judgment    of    the    law    committee ;    the 


ill. i:\ii. m.i  i  [CS.  35 

parties,   however,   retain   their    right  of  resorting   to    the 
usual   remedies." 

Several  of  these  provisions  have  been  adopted  from 
the  Roman   law.     The  Romau   Emperor  decided  doubtful 

cases,   which   had   been   reported   to    him    in    writing,    by 
"decretal* 

The  civilians  say,  "Est  autem  non  raro  necessaria 
legis  interpretatio  ;  quam  solus  quidem  facit  legislator, 
in  quantum  interpretatio  vim  legis  habitura  est.  Quo 
respicit,  quod  scriptum  est,  uti  leges  condere,  ita  e1 
easdem  interpretari,  solo  imperio  dignum  esse."  Voet 
Comment,  ad  Pandectas,  Lib.  I.,  Tit.  III.  18,  and  every 
other  commentator  of  the   Corpus  Juris. 

The  late  Mr.  Edward  Livingston  provides  in  his  penal 
code  that  "if  any  penal  law  shall  be  so  inaccurately 
drawn,  as  to  bring  within  its  penalty  an  act  that  it  would 
not,  in  the  opinion  of  the  court,  have  been  the  intention 
of  the  legislature  so  to  punish,  the  accused  must  be 
acquitted ;  but  the  court  shall  report  such  case  to  the 
legislature  at  their  next  session,  or  within  eight  days,  if 
they  be  in  session."  f  As  to  interpretation  in  general, 
it  seems  evident  that  Mr.  Livingston  relied  too  much  on 
the  possible  perspicuity  of  human  speech.  He,  as  well 
as  Mr.  Jeremy  Bentham,  appears  not  to  have  a  perfectly 
correct  idea  of  human  language,  and  its  exact  relation  to 


*  See  Lib.  l.ff  de  Const.  Princ.  Jj.fin.  pr.  de  Legib.  See,  also,  1  Black- 
stone,  59. 

t  Code  of  crimes  and  punishments,  Book  I.  chap.  1,  art.  9,  or  page  3G7 
of  his  system  of  penal  law  for  the  State  of  Louisiana,  Philadelphia, 
1833.  See,  also,  his  introductory  report  to  the  code  of  crime;;  and 
punishments,  ibid.  p.  139. 


36  HERMENEUTICS. 

things  and  thoughts.  They  seem  to  have  imagined  that 
the  same  degree  of  clearness  of  speech,  which  we  find  in 
mathematics,  might  be  obtained  in  all  branches,  forget- 
ting, perhaps,  in  how  limited  a  circle  mathematics  move, 
and  that  otherwise  they  would  at  once  lose  the  character 
of  absolute  distinctness.  Having  said  thus  much,  we, 
cannot  leave  this  topic,  without  guarding  ourselves  against 
a  misapprehension  that  we  undervalue  the  merits  of  these 
two  reflecting  men.  No  lawyer,  or  politician  ought  to 
remain  unacquainted  with  their  works,  for,  whatever  reason 
he  may  find  to  dissent  from  them,  in  many  particulars, 
he  will  find  enough  worthy  of  being  gathered  and  stored 
up.  We  have  frequently  found  that  their  works  are 
treated  with  a  degree  of  superciliousness,  which  can  be 
explained  only  by  a  want  of  acquaintance  with  them. 

XV.  If  the  power  of  interpretation  is  thus  placed  in 
the  hands  of  those  who  exercise  the  authority  of  govern- 
ment, and  if  this  interpretation  has  effect  not  only  for 
the  future,  but  also  upon  the  case  respecting  which  the 
doubt  arises,  as  is  the  case  with  the  several  nations  above 
mentioned,  then  the  English  and  Americans  consider  this 
manner  of  interpreting  contrary  to  their  constitutional 
spirit.  It  approaches,  in  their  opinion,  too  much  to  the 
dangerous  union  of  the  attributes  of  the  legislator  and 
the  judge  ;  though,  strange  to  say,  this  very  fear,  so  just 
and  salutary  in  its  kind,  has,  in  some  cases,  led  precisely 
to  the  end  that  was  to  be  avoided.  The  many  construc- 
tive offences,  for  example,  in  the  old  English  law,  were 
little  less  than  the  product  of  legislating  judges.  The 
independence  of  the  judiciary  is   one  of  the  touchstones 


HEKMENEUTICS.  37 

of  civil  liberty;  but,  in  these  eases,  the  judges  did  not 
only  act  as  independent  judges  d'-pendenl  upon  the  law, 
but  they  left  their  proper  province,  and  trespassed  upon 
that  of  the  lawgiver.* 

Those  who  imagine  that  the  uncertainty  of  law  can 
possibly  be  avoided,  by  avoiding  all  ambiguity  of  language, 
forget  that,  as  it  was  said  already,  mosl  cases  presenl 
a  compound  of  simple  cases,  and  furthermore,  that  the 
uncertainty  of  law  arises  not  only  out  of  the  general 
uncertainty  of  human  speech,  but  frequently  also  out  of 
the  ambiguous  terminology  of  other  sciences,  arts,  &c.f 
Should  the  law  settle  beforehand  the  meaning  of  all  terms? 
And  what  is  to  be  done  with  reference  to  the  new  things 
and  relations,  which  are  discovered,  invented,  or  estab- 
lished, and  must,  in  suits  which  may  occur,  be  elassed 
under  some  head  or  other  acknowledged  by  the  law?  If 
in  an   important   insurance  case  the   question  has    arisen, 


*  On  the  Independence  of  the  Judiciary,  and  the  Progress  of  Law,  see 
Political  Ethics,  vol.  I  the  proper  chapters,  and  Civil  Liberty,  chapters 
xviii,  xix  and  xx 

t  The  following  instance,  selected  for  the  very  reason  thai  it  refers  to 
the  affairs  of  the  commonest  life,  has  been  taken  from  "Galignani," 
Paris,  January  18,  1811  :  — 

It  was  decided  some  time  since  by  the  Royal  Court  of  Paris,  in  a  case 
of  prosecution  for  the  sale  of  poniard-knives,  that  no  knife  could  be  called 
a  poniard-knife,  and  as  such  considered  a  prohibited  weapon,  on 
had  a  guard  on  the  handle,  besides  a  catch-spring  to  keep  the  blade  fixed 
when  opened.  The  tribunal  of  First  instance  has  jusl  decided  to  the 
contrary  in  a  ease  of  some  cutlers  brougb.1  before  11  for  selling  Catalonian- 
knii'es  (large  curved  knives,  with  double  edges,  pointed  handles,  and 
catch-springs)  ;  and  lias  declared  that  all  knives  having  double 
back  and  front  on  the  top,  with  catch-springs  in  the  handles,  are  weapons 
prohibited  by  the  law,  and  liable  to  seizure." 


38  HERMENEUTICS 

whether  the  Bermudas  belong  to  the  West  Indies  or  not, 
and,  upon  inquiry,  it  was  found  that  the  geographical 
books  differed  on  this  point,  was  the  ambiguity  in  this  case 
the  fault  of  the  law,  or  could  it  possibly  have  been  avoided 
by  the  wisest  foresight  of  the  most  profound  lawgiver,  or 
the  most  comprehensive  plan  of  a  code?  The  law  could 
only  then  be  absolutely  certain  when  mankind  had  ceased 
to  be  a  living,  moving  society  —  a  society,  whose  very 
existence  depends  upon  an  infinite  entwining  and  inter- 
weaving of  countless  interests. 

XVI.     At  all  times  there  have  existed  many  people  who, 
seeino-  how  often  in  matters  of  law,  as  in  all  other  branches, 
the  formality  is  seized  upon  instead  of  the  spirit,  or  being 
desirous  of  flattering  unguarded  crowds,  declaim   against 
the  niceties  of  the  law,  and  with  it  against  carelul  inter- 
pretation, as  being  mere  subtleties  of  the  lawyers  to  harass 
litigating    parties    and    draw    their    own    profit    from    a 
protracted  administration  of  justice.     No  one  who  knows 
the  least  of  the  history  of  judicial  administration,  or  has 
had  an  opportunity  to  observe  it  in  some  countries  at  the 
present   time,   will   venture   to   deny,    that   no    branch    of 
government  has  been  at  some  periods  and  to  this  day  in 
some    countries  —  witness    for     instance    Spain    and    the 
Spanish  colonies,  or  Germany  at  the  time  of  the  Peasants 
War,  or  England  when  the  Star  Chamber  flourished  most, 
for  instance  under  Charles  I.  —  more  scandalously  diverted 
from  its  real  course,  has  been  a  greater  evil  to  the  com- 
munity, for  the  weal  of  which  alone  it  is  established,  than 
the  judiciary  department.     Lawyers  have  at  times  formed 
an  almost   invincible  legion    of  harpies.     But   in   viewing 


IlKK.MKM.l    I  U  8. 

evils  and  endeavoring  to  find  remedies,  we  musl  carefully 
avoid  tli«'  creating  of  equally  great  or  greater  ones.  Again 
and  again   have  the   people   been   told   to   throw   off  their 

fetters,  and  to  have  justice  done  by  plain  men  of  common 
sense   and    unsophisticated    minds.      From    ancient    times 

down  to  the  latest,  to  our  own  period,  it  has  been  asserted, 
that  if  the  real  question  were  to  award  true  justice 
according  to  the  simple  merits  of  the  case,  and  not  to 
satisfy  technicalities,  the  difficulty  would  not  be  great  and 
lawyers  might  probably  be  dispensed  with.  These  persons 
desire,  in  fact,  a  patriarchal  administration  of  justice  —  the 
worst  of  all  justice  bej^ond  the  family  circle  and  in  a  society 
at  all  advanced  in  civilization.  If  we  examine  their  desire 
more  closely  we  shall  rind  that  nothing  less  is  demanded 
than  subjective  justice  —  an  administration  of  justice  ac- 
cording to  the  subjective  view  of  the  judge,  the  substitution 
of  individual  feelings  and  views  for  the  general  rule  and 
equal  law.  Nay,  they  substantially  desire  ex  post  facto 
justice  declared  permanent.  The  declamations  against  law 
and  lawyers  rest  essentially  upon  the  same  erroneous 
principle  upon  which  absolute  monarchists  found  their 
claims  and  desires.  They  wish  for  a  paternal  government, 
a  monarch  who  may  rule  untrammelled  by  fundamental 
laws,  according  to  the  fatherly  desire  of  his  heart.  Let  the 
kins  be  unfettered  to  do  i>ood  ;  let  nothing  bind  him  but 
his  conscience;  let  him  be  responsible  to  no  one  but  his 
God.  It  is  the  Chinese  rule  —  parental  care,  filial  obe- 
dience—  but  security,  rights  and  freedom  cannot  prosper 
in  such  a  state  of  things. 

It  is  so  frequently  forgotten  that  there  are  two  parties  in 
questions  of  justice,  and  that  what  seems  so  uncommonly 


40  HERMENEUTICS. 

plain  to  the  one  that  no  possible  doubt  can  exist,  according; 
to  his  opinion,  does  by  no  means  present  itself  in  the  same 
light  to  the  other.     Some  acts  are  lawful  in  the  day  time, 
but  not  so  during  night ;  or  they  are  less  punishable  if  done 
during  the  day,  than  otherwise.     If  the  law  at  the  same 
time  says  that  night  shall  be  from  sunset  to  sunrise,  it 
seems  to  be  as   plain   as  human   language    can   be.     Yet 
there  were  not  long  ago  two  parties  contending  in  an  Irish, 
court,  the  one  maintaining  that  sunrise  means,  with  regard 
to  the  place  in  question,  the  rising  of  the  sun  above  the 
neiirhboring  mountains,  while  the  other  party  insisted  that 
sunrise  means  the  time  which  is  indicated  as  such  in  the 
almanac.     Both   parties    probably   thought    that    nothings 
could  be  plainer  than  the  respective  view  which  each  took, 
for  the  very  reason  that  it  was  of  great  importance  to  each 
to  carry  his  view.     In  England,  it  has  been  settled  by  act 
of  parliament,  in  1837,  that  night,  with  regard  to  burglary, 
comprehends  the  space  of  time  from  nine  in  the  evening 
till  six  in  the  morning,  all  the  year  round.     But  what  is 
nine   o'clock?     A  life   may  depend   upon  showing  that  a 
certain  act  was  done   at  half  past  eight  and  not  at  nine 
o'clock. 

The  freer  a  country,  the  more  necessary  becomes  inter- 
pretation. For  one  of  the  main  ingredients  of  civil  liberty, 
and  at  the  same  time  one  of  its  greatest  blessings,  is  the 
protection  against  individual  passion,  violence,  views, 
opinions,  caprice  or  well  meant  but  disturbing  interfer- 
ence—  the  supremacy  of  law.  This,  however,  involves 
the  condition  that  laws,  once  made,  must  be  administered 
by  others  than  those  who  made  them,  or  are  making  new 
ones.     Without  it,  the  law  ceases  to  be  a  guarantee  ;  but 


BJKBMENEUTICS.  41 

if  the  making  and  administering  arc  separate,  it  is  accessary 

that  the  laws  be  interpreted,  and  to  do  this,  justly  and 
conscientiously,  the  ministers  of  the  law  must  proceed  by 
proper,  safe  and  sound  rules.*  In  those  states  where  tin- 
law  making  power  is  the  same  with  the  law  administering, 
interpretation  in  the  highest  spheres  of  judicial  action   is 


*  Connected  with  this  fact  is  the  other,  which  I  have  touched  upon  in 
vol.  i.  of  the  Polit.  Ethics,  that  no  country  has  risen  in  political  civilization 
without  the  institution  of  the  advocate.  Indeed,  its  very  existence  proves 
a  considerable  step  in  civilization,  because  it  shows  not  only  that  the 
judge  being  versed  in  the  law,  an  equal  chance  shall  be  given  to  the 
litigating  or  accused  party;  in  my  opinion,  it  indicates  something  more; 
it  manifests  a  degree  of  acknowledgment  that  the  law  shall  be  the 
immutable  rule  —  a  rule  above  the  judge,  not  one  within  his  breast. 
When  the  European  race  rose  out  of  the  confusion  of  feudal  indepen- 
dence, and  law  became  gradually  acknowledged  as  the  supreme  rule,  and 
yet  the  subject  not  being  properly  understood,  and  when,  as  the  same 
dialectic  subtlety  which  had  stolen  into  all  branches,  into  philosophy  as 
well  as  theology,  the  general  bent  of  the  European  mind  very  naturally 
manifested  itself  likewise  in  the  department  of  the  law.  Lawyers  actually 
became,  in  many  instances,  the  perverters  of  right,  instead  of  being  its 
protectors.  Satire  was  directed  on  all  sides  against  them.  Not  a  witt) 
poet  who  did  not  discharge  his  arrows  against  them,  not  a  carnival  in 
which  they  were  not  ridiculed,  and  not  unjustly  so.  But  let  us  not  forgel 
that  precisely  the  same  amount  of  satire,  at  the  same  period,  was  directed 
in  the  same  vehicles  against  matrimony.  Does  anyone  of  us,  uever- 
theless,  doubt  the  necessity  of  marriage  as  the  very  flrsl  element  of 
civilization?  Lawyers  have  at  times  pressed  upon  society  like  a  very 
nightmare.  They  and  the  ministers  of  the  church  have  been  the  worsl 
counsellors  of  tyranny,  the  worst  flatterers  of  absolutism,  bul  let  us  weigh 
the  matter  well,  and  I  believe  we  -hail  come  to  the  conclusion  that  the 
cause  of  liberty  owes  to  lawyers  likewise  infinite  gratitude.  Certainly  il 
is  a  fact,  that  if  English  tyranny,  in  whatever  character  it  showed  Itself, 
has  been  supported  by  lawyers,  the  cause  of  British  Libert]  has  been 
rescued  in  a  great  measure  bv  them. 


42  HERMENEUTICS. 

comparatively  unimportant;  for  the  will  of  the  supreme 
power  may  at  any  time  be  substituted  for  the  law,  or  may 
decide  any  doubtful  case  according  to  whatever  seems 
expedient  to  it.10 


'o  See  Additional  Note  E,  on  Authentic  Interpretation.  —Ed. 


CHAPTER     TIT. 

Construction  — Its  Definition— Twofold  Application  of  this  Definition- 
Necessity  of  Construction,  when  Interpretation  ceases  to  avail- 
Necessity  of  distinguishing  between  interpretation  and  Construc- 
tion—  Instance  —  Doctrine  of  Cy-pres  —  Science  of  Henneneutics  — 
Derivation  of  the  Word  —  Construction,  although  dangerous,  yet 
indispensable  —  Different  Species  of  Interpretation,  to  arrive  at  the 
True  Sense  — Close  Interpretation— Literal  Interpretation  is  an  inad- 
missible Term  — Instances  of  pretended  Literal  Interpretation— 
Extensive  Interpretation  —  Liberal  Interpretation  not  a  good  Term— 
Extravagant  Interpretation— Limited  and  Tree  Interpretation— 
Predestined  Interpretation  — Artful  Interpretation — Authentic  Inter- 
pretation—Different Species  of  Theologic  Interpretation  — Close, 
Comprehensive,  Transcendant,  Extravagant  Construction  —  Indemnity 
Bills. 

I.  The  definition,  which  has  been  given  of  the  term 
Interpretation,  shows  that  it  can  only  take  place,  if  the 
text  conveys  some  meaning  or  other.  It  happens,  however, 
not  unfrequently,  that  in  comparing  two  different  writings 
of  the  same  individual,  or  body  of  men,  they  are  found  to 
contain  contradictions,  and  yet  are  not  intended  to  contra- 
dict one  another.  Or  it  happens  that  a  part  of  a  writing  or 
declaration  contradicts  the  rest,  for  instance,  some  pro- 
visions of  laws  issued  even  by  so  high  a  body  as  the  British 
parliament.  When  this  is  the  ease,  and  the  nature  of  the 
document,  declaration,  or  whatever  else  it  may  be,  is  such 
as  not  to  allow  us  to  consider  the  whole  as  being  invalidated 
by  a   partial   or    other  contradiction,1  we    must    resort  to 


i  It  maybe  questioned  whether  any  kind  of  writing  can,  in  its  nature,  forbid  u< 
from  assuming  a  contradiction  in  arriving  at  it-  meaning.  A.  contradiction  la,  oi 
course,  much  less  likely  to  occur  in  a  constitution  than  in  a  statute;  in  a  statute, 

(48) 


44  HERMENEUTICS. 

construction.  Construction  is  likewise  our  guide,  if  we  are 
bound  to  act  in  cases  which  have  not  been  foreseen  by  the 
framers  of  those  rules  by  which  we  are  nevertheless  obliged, 
for  some  binding  reason,  faithfully  to  regulate,  as  well  as 
we  can,  our  actions  respecting  the  unforeseen  case ;  for 
instance,  when  we  have  to  act  in  politics,  bound  by  a  con- 
stitution, in  a  case  which  presents  features  entirely  new  and 
unforeseen. 

II.  Construction  is  the  drawing  of  conclusions  respecting 
subjects,  that  lie  beyond  the  direct  expression  of  the  text, 
from  elements  known  from  and  given  in  the  text  —  conclu- 
sions which  are  in  the  spirit,  though  not  within  the  letter 
of  the  text. 

Thus  we  say,  "  you  cannot  construe  his  refusal  into  a 
general  unkind  disposition  towards  you,"  which  means,  you 
cannot  draw  the  conclusion,  that  the  utterer  is  unfavorably 
disposed  to  you  (the  subject  which  lies  beyond  the  direct 
expression  of  the  text)  from  the  specific  refusal  in  the 
present  case  (the  elements  known  and  given  in  the  text.) 

In  politics,  construction  signifies  generally  the  supplying 
of  supposed  or  real  imperfections,  or  insufficiencies  of  a 
text,  according  to  proper  principles  and  rules.  By  insuf- 
ficiency, we  understand  both  imperfect  provision  for  the 
cases,  which  might  or  ought  to  have  been  provided  for,  and 
the  inadequateness  of  the  text  for  cases  which  human 
wisdom  could  not  foresee,  as  for  instance,  the  application 


than  in  an  ordinary  contract;  in  a  contract,  than  in  a  letter;  and,  consequently,  our 
readiness  to  explain  away  any  difficult  term,  as  utterly  inconsistent  with  the  rest, 
must  be  less  in  the  former  cases  than  in  the  latter.  But  if  a  contradiction  actually 
occurs  in  a  statute  or  constitution,  must  we  not  meet  it,  and  construe  the  meaning 
of  the  legislature,  or  of  the  people,  as  we  would  thai  of  a  private  writer?  — En. 


IIKUMKNKl  TICS.  45 

of  a  very  ancient  charter  to  cases  arising  out  or  entirety 
and  radically  new  relations,  which  have  since  sprung  up, 
which  cases,  nevertheless,  clearly  belong  to  thai  province 
of  human  actions  for  which  the  charter  was  intended. 

If  Ave  apply  the  above  definition  of  construction  to  texts 
of  inferior  authority  or  importance,  which  partially  militate 
with  the  demands  of  superior  authority,  we  shall  see,  that 
construction  is  the  causing  of  the  text  to  agree  and  har- 
monize with  the  demands  or  principles  of  superior  authority, 
although  they  are  not,  according  to  the  immediate  and  direct 
meaning  of  the  words  constituting  the  text  contained  in  it.2 

It  is,  as  will  he  seen  presently,  construction  alone  which 
saves  us,  in  many  instances,  from  sacrificing  the  spirit  of  a 
text  or  the  object,  to  the  letter  of  the  text,  or  to  the  means 
by  which  that  object  was  to  be  obtained.  And,  without 
construction,  written  laws,  in  fact  any  laws  or  other  texts 
containing  rules  of  actions,  specific  or  general,  would,  in 
many  cases,  become  fearfully  destructive  to  the  best  and 
wisest  intentions,  nay,  frequently,  produce  the  very  oppo- 
site of  what  it  was  purposed  to  effect. 

III.     The   definition  which  has  been  given,  involves  the 

fact  that  the    constructor  is  not  allowed  to   proceed  without 


2  Another  use  of  construction  maybe  shown  by  means  of  the  following  quota- 
tion :  — 

"One  of  Boswell's  resolutions,  often  made,  and  aa  often  needing  to  be  made 
again,  \\ as  i"  be  grave  and  roserved,  i hough  cheerful  and  communicative."  I. iff  of 
Bosm  ell.  iii  Encyclopaedia  Britannica,  vol.  IV..  |>.  78.  The  sentence  illustrates  a  fault 
too  common,  especially  in  writings  upon  moral  topics,  to  which  the  exact  testa  ami 

accurate  definitions  of  physical  science  cannot  be,  or,  at  least,  never  have  i n, 

applied ;  and  it  calls  for  a  peculiar  kind  of  construction.  Interpretation  certainly 
can  make  nothing  of  it:  for,  the  more  clearly  we  ii\  the  meaning  of  each  term 
employed,  the  more  exactly  do  they  neutralize  each  other,  and  leave  no  meaning al 
all  expressed.  Butwhenwe  know  the  occasion  upon  which  they  were  employed, 
we  can  easily  sec  that  the  true  meaning  of  the  whole  expression  is  to  a\  oid  either  of 
the  extremes  indicated,  anil  to  adopt  one's  manner  to  the  occasion.  —  I.e. 


46  HERMENEUTICS. 

rule  or  arbitrarily  ;  he  has  to  draw  conelusions  ( of  course 
correct  and  faithful  ones)  from  the  elements  given  in  the 
text.  This,  if  properly  analyzed  or  applied,  gives  us  all 
the  necessary  rules  of  true  construction. 

The  proper  principles  of  construction  are  those  which 
ouo;ht  to  guide  us  in  good  faith  and  conscience.  They  may 
be  twofold,  according  to  what  has  been  seen  in  section  II.  : 
1.  If  the  text  is  itself  a  declaration  of  the  fundamental 
principles  which  we  are  bound  to  follow  in  a  certain  sphere 
of  actions,  and  of  certain  fundamental  forms  which  are  to 
regulate  our  actions,  in  this  case  construction  signifies  the 
discovery  of  the  spirit,  principles,  and  rules  that  ought  to 
guide  us  according  to  the  text,  with  regard  to  subjects,  not 
specified,  but  which  nevertheless  belong  to  its  province. 
If,  for  instance,  a  political  constitution  or  charter  has  been 
adopted  or  granted,  to  regulate  our  political  actions,  and  a 
case  occurs  which  has  not  been  directly  provided  for,  but 
which  is  of  an  undoubted  political  character,  we  have 
faithfully  to  search  for  its  true  spirit,  and  act  accordingly 
in  the  case  under  consideration.  Analogy,  or  rather 
parallel  reasoning*  in  this  signification  of  construction,  is 
the  essential  means  of  effecting  it. 


*  It  will  be  observed  that  analogy  in  this  case  signifies  something  very- 
different  from  that  reasoning  by  analogy,  against  which  the  author 
declared  himself  strongly  in  his  Pol.  Ethics.  There  he  spoke  against 
reasoning  on  comparisons  of  totally  different  things ;  here  he  speaks  of 
subjects  belonging  to  the  same  sphere.  Indeed,  analogy  in  the  present 
case  means  nothing  more  than  a  reasoning  by  proportion.  In  the  case, 
provided  for  by  law,  or  decided  already,  we  have :  If  A  and  B  exist,  then 
D  shall  take  place.  In  the  case  to  be  construed  we  have  E,  similar  to  A, 
and  E  similar  to  B,  hence  let  G  be  similar  to  D,  in  the  same  proportion. 
[See  also  Supplementary  Note  G,  on  Analogy.] 


HEEMENEUTICS.  47 

2.  Or  there  may  exisi  principles  or  rules  of  superior 
authority,  and  the  problem  of  constructiofl  then  is  to  cause 
that  which  is  to  be  construed  to  agree  with  them.  In  this 
case  the  principles  and  rules  of  superior  authority  are  the 
"  subjects  that  lie  beyond  the  direct  expression  of  the  texl  " 
mentioned  in  the  definition. 

For  instance,  morality  is  one  of  the  chief  ends  of  all 
human  life;  without  it  no  state  can  exist.  This  is  the 
superior  principle.  If,  therefore,  a  testator  leaves  a  will 
containing  provisions  of  an  immoral  character,  striking  out 
these  provisions  is  called  construing  it,  i.e.,  making  it 
harmonize  with  the  general  and  great  object  of  all  govern- 
ment, without  thereby  invalidating  the  whole  will.  Or  if  a 
law  be  passed,  parts  of  which  are  contrary  to  the  funi  la- 
mental  law  of  the  state,  it  is  called  construing  the  law,  when 
the  proper  judges  declare  these  parts  to  be  invalid.  This 
is  acknowledged  in  the  United  States,  and  in  a  similar 
manner  does  the  civil  law  declare  that :  — 

"The  judge  shall  be  guided  by  the  strictness  of  the  law, 
and  not  consider  what  the  emperor  has  declared  against  the 
law."     (3)  C.  11  de  judiciis  (III.  1)  and 

"  Quae  facta  laedunt  pietatem,  existimationem,  verecun- 
diam  nostram  et  (ut  generaliter  dixcrim)  contra  bonos 
mores  fiunt,  nee  faccre  nos  posse  credendum  est."  Papinian 
in  the  Digest,  L.  xxviii.  t.  7,  lo.3 


3  It  is  doubtful  whether  this  passage  will  properly  bear  (he  sense  the  author  puts 
upon  it.  The  judges  of  Justinian  and  his  successors  would  hardly  have  ventured  to 
disregard  any  official  utterance  of  the  emperor,  on  the  ground  that  it  was  contrary 
to  the  fundamental  principles  of  law.  Indeed,  such  a  construction  would  have 
found  no  support  in  those  principles,  the  very  basis  of  which  was,  Quod  principi 
placet,  legis  vigorem  habet. 

The  Constitution  itself  is  of  doubtful  authenticity.  It  is  in  Greek,  without  address 
or  date,  and  conjecturally  ascribed  to  the  Emperor  Zeno.  Cujas  remarks  that  in 
some  copies  it  is  missing  altogether,  and  that  the  owners  of  such  copies  lose  little  or 


48  HERMENEUTICS. 

When  the  codes  of  some  countries  declare,  that  in  case 
the  judge  can  find  no  law  precisely  applicable,  he  shall  be 
guided  by  the  spirit  of  the  provisions  enacted  for  those 
cases  which  resemble  that  most  under  consideration,  they 
authorize  construction  according  to  the  first  part  of  our 
definition.  The  Austrian  code  prescribes  the  mode  just 
mentioned.  See  the  same,  Introduction,  7.  In  penal 
judicature  no  legal  action  can  take  place  in  a  case  unpro- 
vided for  by  law  ;  }^et  the  Chinese  code  applies  construction 
of  this  sort  even  to  offences  and  crimes.* 

Treaties  are  sometimes  also  made,  defining  the  bound- 
aries of  countries  imperfectly  known,  which,  when  they 
come  to  be  acted  upon,  are  found  to  contain  language  not 
applicable  to  the  actual  state  of  things,  in  which  case  we 
must  have  recourse  to  construction.4 


*  See  Sir  George  T.  Staunton's  Penal  Code  of  China,  sect.  XLIV.  p.  43. 

See  also  Supplementary  Note  J.  on  Criminal  or  Penal  Law. — Ed. 

nothing.  Observationes,  Lib.  IX.,  c.  20.  A  scholium  of  Theodoras  Hermopolitas 
accompanies  it,  explaining  it  to  mean  that  the  judge  was  to  follow  the  law  (juset 
Script-urn  legitimum,  as  the  Latin  version  reads),  even  though  private  orders  from  the 
emperor  himself  bade  him  do  otherwise.  In  this  sense,  it  is  a  mere  repetition  of  the 
■well-known  dictum  of  Tiberius,  reported  by  Cedrinus,  and  of  a  Constitution  of 
Anastasius.  Code,  Lib  I.,  tit.  22,  c.  6.  Similar  instructions  are  also  found  in  several 
passages  of  the  Novels  of  Theodosius  and  Justinian.  Their  real  meaning  may  no 
doubt  be  expressed  in  the  terras  used  in  the  rubric  of  Tit.  xxxix  of  the  Novels  of 
Theodosius,  In  damnum  publicum  non  valere  rescriptum,  nee  specialia  beneficia  gener- 
atibus  prceferenda.  Ed.  Goth.  VI.,  p.  17.  It  hardly  need  be  added  that  no  trace  of 
constitutional  limitations,  in  the  modern  American  sense,  or  of  the  control  of  one 
set  of  legislative  rules  by  the  superior  obligation  of  another,  is  found  in  ancient  law. 
See  an  article  on  "Constitutional  Limitations,"  in  3  Western  Jurist,  pp. 65-81.  April, 
1869.  — Ed. 

«  This  is  well  illustrated  by  that  part  of  the  treaty  of  1846,  between  the  United 
States  and  Great  Britain,  which  related  to  the  determination  of  the  boundary-line  to 
the  Pacific  Ocean.    The  words  of  the  treaty  were  as  iollows  (art.  1.) :  — 

"  From  the  point  on  the  forty-ninth  parallel  of  north  latitude,  where  the  boundary 
laid  down  in  existing  treaties  and  conventions  terminates  (i.e.,  from  the  Kocky 
Mountains,  Treaty  of  1842,  art.  2),  the  line  of  boundary  between  the  territories  of 
the  United  States  and  those  of  her  Britannic  Majesty  shall  be  continued  westward 
along  the  said  forty-ninth  parallel  of  north  latitude,  to  the  middle  of  the  channel 
which  separates  the  continent  from  Vancouver's   lsiana,  and    thence    southerly 


HERMENEUTIC8.  49 

IV.  In  the  most  general  adaptation  of  the  term,  con- 
struction signifies  the  representing  of  an  entire  whole  from 
given  elements  by  just  conclusions.  Tims  it  is  said  "  a 
i'i'w  actions  may  sometimes  suffice  to  construe  the  whole 
character  of  a  man." 

It  was  not  without  repeatedly  weighing  the  subject,  that 
I  first  ventured  upon  the  distinction  between  interpretation 
and  construction;  for,  if  clear  distinction  is  one  of  the 
efficient  means  to  arrive  at  truth,  it  is  equally  true  that 
subtleties  impede  instead  of  aiding  in  seizing  upon  it. 
Many  political  contests,  however,  in  which  both  parties 
seemed  to  me  equally  honest,  as  well  as  frequent  disputes 
in  law,  led  me  to  the  distinction,  and  I  had  the  great  satis- 


through  the  middle  of  said  channel,  and  of  Fuea's  Strait*,  to  the  Pacific  Ocean; 
provided,  however,  that  the  navigation  of  the  said  channel  and  Btraits,  south  .if  the 
said  forty-ninth  parallel  of  north  latitude,  remain  free  and  open  to  both  nations." 
The  difficulty  and  the  claims  of  both  parties  are  clearly  set  forth  in  an  article  by  Dr. 
Woolsey,  entitled  "The  Treaty  of  Washington  in  1S71,"  to  be  found  in  the  New 
Englander,  for  July,  1873,  p.  530.    He  says:  — 

"  When  the 'middle  of  the  channel  which  separates  the  continent  from  Vancouver's 
Island 'is  spokenof.it  is  plain  that  the  parties  to  the  treaty  conceive  of  but  one 
channel;  or,  at  least,  that  each  party  supposed  that  there  was  but  one  channel 
answering  the  conditions  named.  With  the  increase  of  navigation  in  that  quarter, 
they  became  aware  that  there  were  two  principal  channels,  besides  several  smaller 
ones,  between  the  islands.  One  of  these,  nearest  to  Vancouver's  Island,  and  west- 
ward of  the  group  to  which  the  island  of  San  Juan  belongs,  had  for  more  than  half 
a  century  been  called  the  (anal  de  Ilaro;  the  other,  situated  to  the  eastward  of 
these  islands,  and  near  the  continent,  had  gone,  in  quite  recent  times,  by  the  name 
of  the  Straits  of  San  Rosario.  The  British  government  claimed  that  the  line  of 
boundary  ought  to  run,  according  to  the  true  sense  of  the  treaty,  through  this  latter 
passage;  our  government  claimed  that  it  ought  to  run  through  the  channel  Dearest 
to  Vancouver's  Island.  The  mean  distance  between  the  two  passages  cannot  be 
more  than  twenty  miles.  The  British  interpretation  would  give  the  San  Juan  group, 
and  the  jurisdiction  over  the  western  channel, to  Great  Britain.  The  treaty  proi  ides 
that  the  channel  through  which  the  line  should  be  drawn  (as  well  as  the  Straits 
of  Fuca)  should  be  open  to  both  nations  south  of  the  forty-ninth  parallel.  To  the 
United  States  it  was  important  to  have  a  treaty-right,  besides  any  right  according 
to  the  law  of  nations,  to  navigate  the  Canal  de  Haro.  To  (.reat  Britain  the  poc 
sion  of  the  islands  named  appeared  to  be  of  value,  and  San  Juan  itself  w  as  regarded 
as  almost  necessary  for  the  defence  of  Vancouver's  Island." 

The  whole  matter  was  submitted  to  the  Emperor  of  Germany,  under  the  treaty 
of  Washington,  and,  after  reports  had  been  obtained  from  experts  and  jurists, 
decided,  October  21, 1872,  in  favor  of  the  claims  and  construction  of  the  United 
States. —  Ed. 


50  HERMENEUTICS. 

faction  of  finding  that  since  the  first  publication  of  the 
present  tract,  two  of  our  most  distinguished  lawyers  have 
fully  concurred  in  the  distinction  between  the  two,  and 
have  adopted  it.* 

Many  cases  would  be  settled  with  greater  ease,  and  to 
the  greater  satisfaction  of  the  interested  parties,  if  this 
distinction  were  strictly  kept  in  view.  We  have  first  to 
settle  whether  construction  is  at  all  admissible,  or  whether 
it  be  absolutely  indispensable,  as,  I  believe  it  has  been  seen, 
it  actually  is  in  many  cases.  After  this  we  have  to  settle 
whether,  in  the  given  case,  interpretation  suffices,  or 
whether  we  must  have  recourse  to  construction.  The 
following  case  is  in  point. 

A  gentleman  whom  we  may  call  Thomas  Cumming,  a 
bachelor,  and  a  native  of  Great  Britain,  accumulated  a 
considerable  fortune  in  the  United  States ;    he  died,  and 


*  The  distinction  is  now  (1860)  very  generally  accepted.  The  Presi- 
dent's Message,  of  December,  1848,  speaking  of  the  American  system, 
makes  use  of  the  terms,  Construction,  Interpretation  and  Precedent  in 
their  proper  meaning.5 

s  While  the  distinction  thus  made  by  our  author  between  the  two  terms  has  been 
recognized  by  many  high  authorities,  and  has  done  much  to  promote  accuracy  of 
thought,  it  can  hardly  be  said  to  have  been  generally  accepted  by  legal  writers.  The 
two  words  are  still  too  often  used  interchangeably,  as  in  the  following  passage  from  a 
writer  of  note :  — 

"  If  the  statutes  had  been  drawn  with  greater  forecast  than  they  have  been,  still 
our  language  does  not  contain  general  terms  which  are  also  so  precise  as  to  avoid 
all  question  as  to  their  meaning,  and  application  in  detail;  while  the  attempt  was 
to  sunder  the  common-law  unity  in  part,  but  not  in  whole.  Moreover,  these  statutes 
have  nearly  all  been  passed  under  a  divided  opinion  in  the  legislative  body;  and  the 
friends  of  this  change  have  striven  to  secure  what  they  practically  could,  hoping, 
at  the  same  time,  to  induce  the  courts  to  grant  by  interpretation  more  than  the 
legislature  would  do  by  express  enactment.  Perhaps,  in  some  instances,  the 
friends  of  the  new  legislation  have  had  just  ground  for  disappointment,  the  courts 
puttin0-  too  strict  a  construction  upon  the  statutes ;  while,  in  other  instances,  they 
have  complained  unjustly  because  the  courts  have  refused  to  give  by  interpretation 
what  it  was  plain  the  legislature  did  not  mean  to  do  by  direct  act."  Bishop  on  the 
Laws  of  Married  Women,  vol.  II.,  §  7,  ad  Jin.  —  Ed. 


IIKHMKNEUTICS.  51 

his  testament  showed  that  he  had  bequeathed  a  large  sum 
to  "  his  nephew,  Thomas  Cumming,"  in  England.  The 
latter  was  dead  at  the  time  of  the  making  of  his  uncle's 
will  in  America,  Leaving,  however,  an    only  child,  likewise 

called  Thomas  Cumming;  but  the  death  of  the  one  and 
the  birth  of  the  other  were  equally  unknown  to  Thomas 
Cumming,  the  eldest,  at  the  time  when  he  made  hi-  testa- 
ment,  and  down  to  the  time  of  his  decease.  Now  it  was 
contended  that  T.  Cumming,  the  testator,  did  not  leave 
the  sum  to  T.  Cumming,  the  nephew,  he  being  already 
dead  ;  and  that  the  birth  of  the  youngest  Cumming,  not 
yet  being  known  to  the  testator,  he  could  not  have  meant 
him.  It  is  evident  that  according  to  the  true  import  of  the 
term  "  interpretation,"  the  argument  was  good  ;  for  according 
to  the  true  meaning  of  the  testator's  words,  that  is  according 
to  the  meaning  which  he  attached  to  them,  he  cannot  have 
meant  T.  Cumming  the  }roungest.  But  there  being  no  T. 
Cumming,  whom  the  testator  meant,  in  existence,  the 
question  becomes  this,  how  shall  we  draw  our  conclusions 
and  apply  them  to  the  subject,  which  lies  beyond  the  direct 
expression  of  the  text,  from  elements  known  by  and  given 
in  the  text?  —  the  testament  in  the  present  case.  Is  the 
testament  our  guide  or  not?  It  evidently  is  ;  then  con- 
struction becomes  necessary  if  interpretation  is  insufficient, 
and  the  elements  afforded  us  by  the  text  will  lead  us  to  the 
just  and  true  conclusion,  that  Thomas  Cumming  the  eldesl 
meant  to  leave  the  sum  in  question  to  the  English  branch 
of  his  family,  and  that  T.  Cumming  the  j'oungest  ought 
to  receive  it.* 


*  The  following  is  added  from  the  English  reports  in  January,  1843 :  — 
The  great  will  cause  of  Blundell  versus  Gladstone  was  decided  yesterday, 


52  HERMENEUTICS. 

The  whole  doctrine  of  Cy-pres  belongs  to  construction. 
See  2  Story  on  Equity,  415. 

Nor  does  the  distinction  do  violence  to  language,  whether 
we  view  the  two  terms  as  used  in  common  life,  or  in  respect 
to  their  etymology  ;  for  construction,  from  conslruere,  means 
to  build  up.  Lawyers  frequently  call  both  construction  ; 
divines,  on  the  other  hand,  use  interpretation  for  both. 

V  That  branch  of  science  which  establishes  the  prin- 
ciples and  rules  of  interpretation  and  construction  is  called 
hermeneutics,  from  the  Greek  ippyveuai  to  explain,  to  inter- 
pret ;  and  the  actual  application  of  them  exegesis,  from  the 
Greek  i^yatq,  explanation.  Hermeneutics  and  exegesis 
stand  in  the  relation  to  each  other  as  theory  and  practice. 

In  England  and  America  these  terms  are  generally  used 
by  theologians  only,  but  the  Germans,  who  first  brought 
them  into  use,  apply  them  equally  to  philology  and  divinity. 
There  is  no  reason  why  this  term  should  not  be  used  in  all 
sciences  in  which  interpretation  and  construction  become 
necessary ;  in  short  in  all  branches  in  which  we  are  bound 


in  the  Court  of  Chancery ;  when  Mr.  Justice  Pattison  and  Mr.  Justice 
Maule  attended  to  state  their  judgment  on  a  trial  at  law.  Mr.  Charles 
Robert  Blundell  left  property,  by  a  will  dated  1S37,  to  the  second  son  of 
Edward  Weld,  of  Lulworth,  and  his  issue :  there  was  no  Edward  Weld,  of 
Lulworth ;  but  Joseph  Weld,  of  Lulworth,  had  a  son  Edward  Joseph,  now 
dead.  The  property  was  contested  by  the  heirs-at-law,  Lord  Camoys  and 
Lady  Stourton,  on  the  ground  that  the  will  was  void ;  and  by  Thomas 
Weld,  the  second  son  of  Joseph  Weld,  on  the  plea  that  by  Edward  Weld, 
of  Lulworth,  the  will  clearly  meant  Joseph  Weld,  of  Lulworth.  So  the 
Vice-Chancellor  had  decided ;  the  Judges  concurred ;  and  the  Lord  Chan- 
cellor now  confirmed  the  previous  decisions.  Under  the  circumstances, 
however,  the  costs  of  the  suit  were  ordered  to  be  paid  out  of  the  estate.6 

6  Blundell  v.  Gladstone,  11  Simons  467. —  Ed. 


HBRMENEUTIC8.  53 

carefully  to  ascertain  the  sense  of  words  and  regulate  actions 
according  to  their  spirit  and  true  import. 

VI.  For  the  very  reason  thai  construction  endeavors  to 

arrive  at  conclusions  beyond  the  absolute  sense  of  the  text, 
and  that  it  is  dangerous  on  this  account,  we  must  strive  the 
more  anxiously  to  tind  out  sate  rules,  to  guide  us  on  the 
dangerous  path.  For,  although  dangerous,  we  cannot 
possibly  escape  it ;  because  times,  relations,  things  ch  inge, 
and  cannot  be  foreseen  by  human  intellect ;  nor  is  it  given 
to  any  man  to  provide  for  all  cases  already  existing,  or  to 
use  language  which  shall  leave  no  doubt.  Many  things  are 
dangerous,  yet  we  cannot  dispense  with  them  nevertheless. 

It  lies  likewise  in  the  nature  of  things  that,  in  many 
cases,  interpretation  and  construction  must  closely  approach 
to  one  another  ;  but  still  the  distinction  is  clear.  Food  and 
poison  are  very  distinct  things,  although  in  some  eases  they 
approach  so  closely  that  it  would  be  difficult  to  decide,  with 
absolute  certainty,  which  term  we  ought  to  choose. 

That,  from  the  nature  of  interpretation  and  construction, 
since  they  signify  the  arriving  at  something  certain  from 
something  ambiguous  or  uncertain,  good  faith  and  common 
sense  are  indispensable  in  the  application  of  the  principles 
furnished  by  hermeneutics  to  the  complex  cases  of  practical 
life,  is  evident.  More  on  this  subject  will  be  presently 
given. 

VII.  An  individual  may  use  some  words  which  every 
one  understands,  and  which,  for  the  case,  arc  sufficiently 
clear;  but  if  you  ask  him  as  to  the  exact  limits  to  which 
he  wishes  to  see  his  remarks  extended,  or  put  to  him  a 
number  of  cases  in  progressive  connection  with  each  other, 


54:  HEKMENEUTICS. 

he  himself  will  be  doubtful,  iu  most  instances,  how  far 
he  would  extend  the  application  of  his  remark.  The 
consequence  is,  that  interpretation  may  be  more  or  less 
comprehensive  according  to  the  sense  which  we  may  be 
in  duty  bound  to  give  to  some  particular  words,  not,  be  it 
mentioned  here  in  anticipation,  that  the  object  of  inter- 
pretation can  ever  vary,  or  that  there  can  be  two  true 
meanings  in  any  text.  The  sole  legitimate  object  of  all 
interpretation  is  to  find  out  the  true  sense  and  meaning, 
not  to  impart  any  meaning  to  them  ;  but  since  this  true 
sense  is  occult,  we  may  be  bound  to  use  various  means  to 
arrive  at  it  to  the  best  of  our  ability,  and  according  to  the 
conscientious  desire  of  finding  the  true  sense.  We  have, 
therefore,  to  note  the  following  different  species  of  inter- 
pretation. 

VIII.  Close  interpretation  (interpretatio  restrictiva)  is 
allowable,  if  just  reasons,  connected  with  the  formation 
and  character  of  the  text,  induce  us  to  take  the  words  in 
their  narrowest  meaning. 

This  species  of  interpretation  has  been  generally  called 
literal  interpretation,  a  term  inadmissible,  in  my  opinion. 
Literal  interpretation  ought  to  mean  of  course,  that  which 
takes  the  words  in  their  literal  sense,  which  is  hardly  ever 
possible,  since  all  human  language  is  made  up  of  tropes, 
allusions,  images,  expressions  relating  to  erroneous  con- 
ceptions, &c,  for  instance  the  expression,  The  sun  rises. 
Literal  interpretation  would  signify,  moreover,  in  most 
cases,  a  contradiction,  since  there  can  be  but  little  doubt 
as  to  the  meaning  of  a  sentence,  if  the  words  may  be  taken 
in   a    literal    signification,    so    as   to    make    sense    at   all. 


HERMENE1  TIC8.  ob 

Interpretation,  therefore,  would    be   superfluous.     On   the 

other  hand,  it  is  very  difficult  to  say  where  the  literal 
signification  of  a  word  ends,  and  the  figurative  begins. 
In  reading  Latin  no  one  would  insist  thai  the  literal  sense 
of  Confutare  is  to  cheek  boiling  water  by  pouring  in  cold 
from  a  vessel  called  futum,  or  futis,  although  this  was  the 
original  signification.  In  other  eases,  it  would  be  difficult 
to  say  what  is  the  literal  meaning.  Is  the  word  going,  if 
used  of  a  vessel  proceeding  from  one  place  to  another, 
used  in  its  literal  sense  or  not?  If  we  substitute  original 
meaning  for  literal,  we  find  at  once  the  impropriety  of  the 
term.  To  Give  is  a  word  found  in  all  Teutonic  and  many 
other  languages,  and  is,  probably,  derived  from  the  ancient 
word  Gaff,  the  hollow  of  the  hand,  so  that  the  original 
meaning  is  identical  with  our  word  to  Hand.  But  is,  on 
this  account,  the  expression  "I  give,"  used  in  a  will,  to  be 
declared  void,  although  sound  reasons  may  prevail  to  adopt 
the  closest  possible  interpretation,  because  the  testator, 
being  dead,  cannot  any  longer  give,  in  its  literal  sense, 
something  to  another  person,  because  he  cannot  use  any 
longer  his  hands?  Or  are  we  to  make  a  distinction  between 
original  and  literal  meaning?  If  so,  where  are  the  limits, 
and  what  possible  good  can  Ave  derive  from  it? 

These  remarks  are  not  without  practical  importance. 
Enormous  crimes,  and  egregious  follies  have  been  com- 
mitted under  the  pretended  sanction  of  literal  interpretation, 
using  interpretation  as  a  means  to  promote  certain  objects, 
while  its  simple  and  only  object  is  to  ascertain  and  fix  the 
true  sense  of  a  text. 

When  that  poor  tavern  keeper  in  England,  whose  inn 
had  the  sign  of  a  crown,  was  sentenced  for  treason,  because 


56  HERMENEUTICS. 

he  had  jestingly  said,  that  he  had  made  his  son  heir  to  the 
crown,  his  judges  thought  they  interpreted  literally,  and 
maintained  that  it  was  a  case  which  called  for  literal 
interpretation.  Had  they  used  close  interpretation,  they 
could  never  have  reached  the  life  of  the  poor  tavern 
keeper,  at  least  in  this  way.  For  the  closer  the  inter- 
pretation was  taken,  the  closer  it  would  have  come  to  his 
tavern  crown.  Literal  interpretation  is  a  most  deceptive 
term  ;  under  the  guise  of  strict  adherence  to  the  words,  it 
wrenches  them  from  their  sense.7 

If  we  understand  by  literal  interpretation,  a  species 
which,  by  way  of  adhering  to  the  letter,  substitutes  a  false 
sense  for  the  true  one,  it  has  no  more  meaning  than  the 
term  "false  facts."  It  is  false,  deceptive,  or  artful 
interpretation,  if  we  do  not  give  that  sense  to  words 
which  they  ought  to  have,  according  to  good  faith,  common 
sense,  the  use  which  the  utterer  made  of  them,  &c. 


i  A  very  curious  instance  of  the  absurd  consequences  to  which  the  application  of 
formal  rules  of  interpretation  may  sometimes  lead,  is  found  in  the  somewhat  cele- 
brated case  of  Pleasant  v.  The  State,  13  Ark.  560.  This  was  an  indictment  against  a 
negro  for  an  attempt  to  commit  a  rape  on  a  white  woman;  and  it  was  properly 
enough  held,  that,  as  the  statute  provided  expressly  for  the  case  of  an  assault  by  a 
person  of  one  color  upon  another,  the  color  or  race  of  the  two  parties  respectively 
must  be  proved  by  the  State,  as  laid  in  the  indictment.  The  court  also  held  that  the 
jury  must  have  formal  proof  that  the  prosecutrix  was  a  white  woman ;  and  that  the 
fact  of  their  having  seen  her,  known  her,  and  heard  her  testify  would  not  sustain 
their  finding  without  such  proof.  This  ruling,  too,  may  no  doubt  be  sustained 
under  the  modern  authorities,  though  it,  perhaps,  marks  more  clearly  than  any 
other  case  in  our  books  the  entire  change  which,  in  the  course  of  centuries,  has 
been  produced  in  the  office  of  the  jury,  who  were  originally  produced  as  witnesses 
testifying  of  their  own  knowledge.  But  when  the  prisoner's  counsel  further  asked 
the  court  to  charge  that  the  State  must  likewise  prove  the  defendant  to  be  a  negro, 
in  order  to  convict,  and,  though  he  was  black,  their  seeing  him  was  no  proof  that  he 
was  a  negro,  the  court  refused  so  to  charge ;  holding  that,  inasmuch  as  the  instruction 
assumed  that  the  prisoner  was  black,  the  presumption,  arising  from  color,  that  he  was 
a  negro,  would  prevail.  In  other  words,  the  jury  were  not  allowed,  from  the  evidence 
of  their  own  senses  as  to  the  color  of  the  woman,  to  find  that  she  was  a  white 
woman;  but  that  the  assumption,  in  an  instruction  by  the  prisoner's  counsel,  that 
his  color  was  black,  was  conclusive  of  the  fact  that  he  was  a  negro.  Had  the  court 
founded  its  ruling  on  the  literal  meaning  of  the  word  negro,  there  might  have  been 
a  little  more  plausibility  in  the  argumentation.  —  Ed. 


HERMENEUTICS.  57 

The  canon  law  prohibits  the  ministers  of  the  Roman 
Catholic  church  from  shedding  human  blood.  Many 
bishops  and  other  ecclesiastics  of  the  middle  ages,  there- 
fore, who  could  not  resist  the  universal  spirit  of  warfare 
and  robbery  of  those  times,  for  instance  of  the  11th 
and  12th  centuries,  fought  with  maces,  without  thorns 
or  points.  Philippe-de-Dreux,  bishop  of  Beauvais,  a 
redoubted  warrior,  famous  for  his  robberies  and  cruel- 
ties, killed,  in  the  battle  of  Bouvines,  every  one  he 
could  reach  with  his  mace.  Wulson,  author  of  the 
Heroic  Science,  speaks  of  a  similar  license  for  the  war- 
like bishops  of  that  time  as  generally  admitted.* 


*  See,  among  other  works,  Histoire  Civile,  Physique  et  Morale  de 
Paris,  by  T.  A  Dulaure,  Paris,  1825,  3d  ed.  vol.  ii.  p.  415  et  seq. 

According  to  a  similar  misinterpretation,  as  it  seems  to  me,  the  same 
law  was  held  to  prohibit  priests  from  practising  surgery,  but  not  medi- 
cine, as  they  frequently  did  in  earlier  times,  when  priests  were  the  few 
who  possessed  any  science  whatever.  If  there  was  no  particular  reason 
for  this  distinction,  which  I  do  not  know,  the  fault  arose  out  of  the 
omission  of  paying  attention  to  the  usus  loquendi.  Single  words  were 
taken  in  their  respective  significations,  but  it  was  not  literal  interpreta- 
tion for  all  that.  Shedding  blood  is  not  the  opening  of  veins  or  arteries, 
but  the  doing  it  with  violence,  to  the  harm  of  the  wounded. 

Innumerable  dogmatic  aberrations  from  the  path  of  religion,  have  had 
and  have  their  origin  in  this  species  of  misinterpretation.  The  above 
instance  brings  another  to  my  mind,  likewise  belonging  to  the  history  of 
the  catholic  church,  though  quite  as  many  instances  may  be  found  in  law, 
if  we  refer  to  the  time  of  the  schoolmen. 

It  was  one  of  the  monastic  punishments  to  wall  up  the  criminal  alive. 
This  was  called  "  In  pace,"  at  least  with  the  Franciscans,  because  every 
member  said:  In  pace  requiescat,  when  the  fearful  ceremony  was  con- 
cluded, and  the  last  brick  immured  the  criminal,  never  to  return.  It  lias 
not  frequently  occurred,  but  sometimes  it  actually  has.  The  annals  of 
the  Franciscans  say  that  even  their    saint  threatened  a  brother,   who 


58  HERMENEUTICS. 

IX.  Extensive  interpretation  (interpretatio  extensiva,) 
likewise  called  liberal  interpretation,  is  that  which  inclines 
towards  adopting  the  more  or  most  comprehensive  signifi- 
cation of  the  word.  Extensive  or  comprehensive  interpre- 
tation seems  to  be  a  better  term  than  liberal  interpretation. 


refused  to  visit  a  leprous  man,  with  this  punishment.  The  reason  why 
the  order  preferred  this  punishment  was  because :  Ecclesia  non  sitit  san- 
guinem  (the  church  thirsteth  not  for  blood)  ;  they  preferred,  therefore, 
this,  in  appearance,  less  violent  infliction  of  death.  But  even  if  the 
actual  infliction  of  death  were  less  violent  than  hanging  —  although  most 
persons  will  believe  that  immuring  must  greatly  protract  the  last  agony 
of  death,  and  give  full  time  to  the  horrors  of  despair  — the  interpreta- 
tion of  sitire  sanguinem  would  not  be  more  correct,  simply  because 
Sanguis  stands  here  as  part  for  the  whole,  namely,  Life.  Ordres  mon- 
astiques,  vol.  iii. 

The  "Franciscan,"  who  fought  so  gallantly  by  the  side  of  Andrew 
Hofer,  against  the  French  and  Bavarians,  had  nothing  but  a  white  staff, 
but  he  led  many  an  assault  on  the  enemies'  batteries.  He  was  a  noble 
patriot,  but  did  he  shed  no  blood?8 

s  Rabelais  has  made  Frere  Jean  an  obedient  son  of  the  Church  in  this  respect. 
His  famous  victory  is  too  good  an  illustration  of  the  text  to  be  omitted  here:— 

"  Ce  disant,  mist  bas  son  grand  habit,  et  se  saisit  du  baston  de  la  croix,  qui  estoit 
de  cueur  de  cormier,  long  comme  une  lance,  i-ond  a  plein  poing,  et  quelque  pen 
seme  de  fleurs  de  lys  toutes  presque  effacees.  Ainsi  sortit  en  beau  sayou,  mist  son 
froc  en  escharpe,  et  de  son  baston  de  la  croix  donna  brusquement  sus  les  ennemys, 
qui,  sans  ordre  ne  enseigne,  ne  trompette,  ne  taborin,  parmi  le  cloz  vendangeoyent. 
Car  les  porteguidons  et  portensignes  auoyent  mis  leurs  guidons  et  enseignes  l'oree 
des  murs,  les  taborineurs  auoyent  defonce  leurs  taborins  d'ung  couste,  pour  les 
emplir  de  raisins,  les  trompettes  estoyent  chargees  de  moussines ;  ehaseun  estoit 
desraue.  II  choqua  doncques  si  roiddement  sus  eulx,  sans  dire  quare,  qu'il  les 
renuersoit  comme  pores,  frappant  a  tors  et  a  trauers  a  la  vieille  escrime.  Ez  ungs 
escarbouilloit  la  ceruelle,  ez  aultres  rompoit  bras  et  jambes,  ez  aultres  deslochoit 
les  spondiles  du  col,  ez  aultres  demoUoit  les  reins,  aualloit  le  nez,  poschoit  les  yeulx, 
fendoit  les  mandibules,  enfoncoit  les  dens  en  la  gueulle,  descroulloit,  les  ompo- 
plates,  sphaceloit  les  greues,  desgondoit  les  ischies,  debecilloit  les  faucilles.  Si 
quelqu'ung  se  douloit  cocher  entre  les  seps  plus  espes,  a  icelluy  froissoit  toute  l'ar- 
reste  du  dos,  etl'esrenoit  comme  ung  chein.    *    *    * 

"Ainsi,  par  sa  proesse,  feurent  desconflz  tous  ceulx  de  l'armee  qui  estoyent 
entrez  dedans  le  cloz,  jusques  au  nombre  de  treize  mille  six  cens  vingt  et  deux,  sans 
les  femmes  et  petitz  enfans,  cela  s'entende  tonsiours.  Jamais  Mangis  hermite  ne  se 
porta  si  vaillamment  a  tout  son  bourdon  contre  les  Sarrasins,  desquelz  est  escript  es 
gestes  des  quatre  tils  Aymon,  comme  feit  le  moyne  a  l'encontre  des  ennemys,  avec 
le  baston  de  la  croix."    Rabelais'  Gargantua,  Lib.  I.,  chap.  27.  —  Ed. 


llEK.MKNKLTlCS.  59 

The  latter  sounds  as  if  a  dispositioo  of  the  interpreter 
were  to  be  indicated,  while  his  true  object  is  to  ascertain 
the  exact  meaning;  at  least  the  term  ought  to  be  reserved 
for  those  cases  where  we  actually  strive,  for  some  reason 
or  other,  to  give  the  most  liberal  sense  to  a  set  of  word-. 
for  instance  in  a  case  which  strongly  calls  for  mercy, 
though  the  law  is  distinct  and  demands   punishment. 

Long  after  the  preceding  passages  had  been  written  a 
very  striking  confirmation  of  their  contents  came  to  the 
knowledge  of  the  author. 

Sir  Frederic  Pollock,  at  a  later  period  chief  baron  of 
the  Exchequer,  used  the  following  words  when  counsel 
for  John  Frost,  indicted  for  high  treason  in  1840:  "If 
there  be  any  phrase  I  deprecate  for  all  purposes  it  is  that 
of  «  a  liberal  construction '  of  any  statute,  *  *  *  and, 
my  Lords,  I  believe  that  this  had  the  perfect  approba- 
tion of  the  late  Lord  Tenderden,  when  arguing  before  him 
I  took  the  liberty  of  saying,  as  I  do  now  before  your 
lordships  that  we  ought  not  to  hear  of  strict  construc- 
tion or  of  liberal  construction,  but  that  the  only  thing 
we  have  to  look  for  is  the  «  true  construction,'  be  that 
what  it  may."* 

Extravagant  interpretation  (interpretatio  excedens)  is 
that  mbde  of  interpreting,  which  substitutes  such  mean- 
ing as  is  evidently  beyond  the  true  meaning;  it  is,  there- 
fore, not  genuine  interpretation. 

Interpretation  may,  likewise,  be  limited  or  free. 

Free  or  unrestricted  interpretation  (interpretatio  soluta) 
proceeds  simply  on  the  general  principles  of  interpretation 


Page  11,  vol.  I.,  Townsend's  Modern  State  Trials,  London,  1850. 


60  HERMENEUTICS. 

in  good  faith,  not  bound  by  any  specific  or  superior  prin- 
ciple. Limited  or  restricted  interpretation  (interpretatio 
limitata)  takes  place,  if  other  rules  or  principles  than  the 
strictly  hermeneutic  ones,  limit  us. 

If,  for  instance,  an  individual  were  to  say,  "  I  neither 
believe  nor  disbelieve  the  bible,  but  intend  to  find  out 
its  true  sense,  and  then  to  be  determined  whether  I  shall 
believe  in  it  or  not,"  it  would  be  unrestricted  interpre- 
tation. If,  however,  the  inquirer  has  already  come  to  the 
conclusion,  that  the  scriptures  were  written  by  inspired 
men,  that,  therefore,  no  real  contradiction  can  exist  in 
the  bible,  and  he  interprets  certain  passages  accordingly, 
which  prima  facie  may  appear  to  involve  a  contradiction, 
it  would  be  limited  interpretation.  See  Ernesti,  Insti- 
tutio  Interpretis,  part  i.  section  i.  chap.  ix. 

All  proclamations,  orders,  &c,  of  a  British  monarch  or 
the  government  of  the  United  States,  are  subject  to  inter- 
pretation restricted  or  limited  by  the  acts  of  parliament 
or  congress,  if  they  require  interpretation  at  all,  and  would 
otherwise  clash  with  these  acts. 

X.  Finally,  interpretation  may  be  predestined  (inter- 
pretatio predestinata),  if  the  interpreter,  either  consciously 
or  unknown  to  himself,  yet  laboring  under  a  strong  bias 
of  mind,  makes  the  text  subservient  to  his  preconceived 
views,  or  some  object  he  desires  to  arrive  at.  Luther, 
in  his  work,  De  Papatu,  charges  the  catholics  with  what 
is  called  here  predestined  interpretation  of  the  bible, 
inasmuch  as  in  his  view  they  do  not  seek  for  the  true 
meaning  of  the  bible,  but  strive  to  make  it  subservient 
to  their  preconceived    dogmas.      This  peculiar   species   of 


HEKMENEDTICS.  61 

interpretation  would  not  have  been  mentioned  here,  for 
it  is  not  genuine  interpretation,  were  it  not  so  common 
in  all  branches,  in  sciences  and  common  life,  in  law  and 
politics  not  less  than  in  religion,  with  protestants  as 
habitually  as  with  catholics,  so  that  none  of  us  can  be 
too  watchful  against  being  betrayed  into  it.  It  corre- 
sponds to  what  might  be  called  in  ratiocination,  ex  post 
facto  reasoning. 

A  peculiar  species  of  predestined  interpretation  is  artful 
interpretation  (interpretatio  vafer),  that,  which,  by  cun- 
ning and  art,  attempts  to  show  that  the  text  means 
something  which  was  not,  according  to  the  interpreter's 
own  knowledge,  the  meaning  of  the  author  or  utterer. 
Artful  interpretation  is  not  always  immoral.9  A  legal 
counsel  is  understood  to  produce  everything  favorable 
that  can  be  brought  to  bear  upon  the  case  of  his  client, 
so  that,  the  same  being  done  on  the  other  side,  all  that 
can  be  said  for  and  against  the  subject,  may  be  brought 
before  the  judges.  That  counsel  ought  not  to  swerve 
from  the  common  principles  of  morality  in  this,  as  in 
any  other  case,  is  evident. 


9  A  singular  example  of  artful  construction,  employed  to  remedy  the  evils  of 
ignorant  legislation,  i.s  found  in  the  jurisprudence  of  Iowa.  By  an  ad  of  the  Terri- 
torial Legislature  (extra  session  of  1840,  sect.  8,  chap. 29),  it  was  provided  that  "none 
of  the  statutes  of  Great  Britain  shall  be  considered  as  law  in  this  Territory."  This 
provision  led  to  grave  doubts  as  to  the  common  law  itself;  since  thai  law,  as  adopted 
in  this  country,  is  largely  composed  of  the  statutes  passed,  from  tunc  to  tunc,  pre- 
vious to  the  settlement  of  the  colonies.  In  a  case  involving  a  question  of  dower,  it 
was  even  doubted  whether  the  statute  of  Merton  (A.  D.  T2:l5-6)  had  not  been  repealed 
by  the  section  above  quoted.  Of  course,  the  statutes  of  Westminster,  of  wills,  of  uses, 
of  fraudulent  conveyances,  etc.,  would  all  have  gone,  too!  But  the  court  gravely  held 
that  by  the  "statutes  of  Great  Britain"  the  Legislature  could  only  have  intended 

those  passed  after  the  union  of  England  and  Scotland,  in  1707, since  arlier  statutes 

were  known  by  that  title.    As  nobody  had  any  interest  in  claiming  that  any  of  the 
English  statutes  passed  subsequently  to  the  settlement  of  the  colonies,  in  the   n 
of  James  I.,  were  in  force,  this  construction  satisfied  the  letter  of  the  law,  without 
harming  any  one.    O'Ferrall  v.  Bimplot,  4  Iowa,  3SL  — Ed. 


62  HERMENEUTICS. 

The  same  remark  does  not  apply  to  political  party 
affairs,  for  this  simple  reason,  that  in  matters  of  law  final 
judgment  is  given  by,  and  the  arguments  on  both  sides 
are  stated  before,  the  same  judges  at  the  same  time, 
and  before  judges  who  form  no  party  themselves  nor 
belong  to  any  of  the  contending  parties.  The  comparing 
of  political  party-matters  either  to  legal  strifes,  or  to 
real  warfare,  is  unsound  in  principle,  and  has  created 
great  mischief.  It  must  be  counted  among  the  many 
subjects  which  have  done  infinite  injury  to  society,  by  a 
confusion  of  ideas  and  words  and  a  misapplication  of 
similes  in  their  departments.  If  we  see  violent  party 
struo-o-les,  and  the  advocates  on  both  sides  maintaining 
the  authority  of  the  same  instrument,  perhaps  of  the 
same  provision,  let  us  ask  ourselves,  which  of  the  two 
proceeds  on  genuine  and  which  on  artful  interpretation ; 
which  proceeds  upon  the  instrument  itself,  and  which 
has  some  distant  object  beyond  it,  or  starts  from  some 
preconceived  views,  or  interested  motives.  Frequently 
this  inquiry  alone  will  contribute  essentially  to  our 
arriving  at  the  real  state  of  things. 

XI.  Authentic  interpretation10  is  called  that  which  pro- 
ceeds from  the  author  or  utterer  of  the  text  himself; 
properly  speaking,  therefore,  it  is  no  interpretation,  but  a 
declaration.  If  a  legislative  body,  or  monarch,  give  an 
interpretation,  it  is  called  authentic,  though  the  same 
individuals  who  issued  the  law  to  be  interpreted,  may  not 
give  the  interpretation ;  because  the  successive  assemblies 


10  See  supplementary  note  E,  on  Authentic  Interpretation.  — Ed. 


HEBMBNEDTICS.  63 

or  monarch?  are  considered  as  one  and  the  same,  making 
the  law  and  giving  the  interpretation  in  their  represent- 
ative, and  not  in  their  personal  characters.  Authentic 
interpretation,  therefore,  need  not  always  be  correct,  though 
it  has,  if  formally  given,  binding  power.  Still  it  may  be 
reversed  by  a  subsequent  law. 

According  to  the  means  which  we  make  use  of  to  assist 
us  in  interpretation,  we  find  with  some  writers  the  follow- 
ing species :  interpretatio  usualis,  if  we  interpret  on  the 
ground  of  usage,  doctrinalis,  if  in  a  scientific  way,  gram- 
matica,  kistorica,  liistorico-grammatica,  logica.11  Interpre- 
tatio declarativa  is  that  interpretation  which  settles  the 
meaning  of  a  term  until  then  of  vague  or  ambiguous  sif- 
nification,  e.g.  the  word  game  having  been  used,  it  is 
finally  settled  what  animals  shall  be  classed  under  this 
head,  and  which  not. 

Some  authors,  for  instance,  Rutherforth,  have  divided 
interpretation  into  three  kinds,  literal,  rational,  and  mixed. 
These  terms,  however,  as  well  as  many  of  the  above,  lose 
greatly  in  their  importance,  or  become  actually  inadmis- 
sible, if  we  adhere  to  our  definition  of  interpretation,  which 
is  to  find  the  "true  sense."  There  can  be  then  no  literal 
sense,  and  besides  it,  another.  A  single  word  may  signify 
indeed  several  things,  and  in  order  to  determine  in  which 
sense  it  has  been  used  in  a  particular  passage,  "sve  shall  be 
obliged,  as  a  matter  of  course,  to  use  grammar,  etymology, 


11  To  this  list  may  be  added,  on  the  best  English  authority,  a  very  characteristic 
term.  "This  would,  indeed.be  interpretatio  viperina,  slb  the  doctors  call  it,  where 
the  comment  destroys  the  text."    Blackstone,  Law  Tracts,  I.,  23. 

Upon  the  various  kinds  of  interpretation,  and  the  division  of  the  subject  by  other 
writers,  see  Supplementary  Note  B.  —  Ed. 


64  HERMENEUTICS. 

logic,  and  every  other  means,  which  are  in  constant  use 
among  men,  to  understand  the  words  of  one  another.  This 
has  been  clearly  shown  as  early  as  by  Ernesti  in  his  Insti- 
tutes already  cited.     See  sect.  XI.  I. 

XII.  Owing  to  the  peculiar  character  which  the  bible 
possesses,  as  a  book  of  history  and  revelation,  and  the 
relation  between  the  old  and  new  testaments,  we  find  that 
some  divines  ascribe  various  meanings  to  the  same  passages 
or  rites,  and  that  different  theologians  take  the  same  pas- 
sage in  senses  of  an  essentially  different  character.  We 
hear  thus  of  typical,  allegorical,  parabolical,  anagogical, 
moral  and  accommodatory  senses,  and  of  corresponding 
modes  of  interpretation.  For  information  on  this  subject, 
the  reader  must  refer  to  works  on  theologic  hermeneutics. 
In  politics  and  law  we  have  to  deal  with  plain  words  and 
human  use  of  them  only. 

The  chief  subjects  we  have  to  interpret  or  construe,  as 
citizens,  are  spoken  words  or  entire  speeches,  letters, 
orders  and  directions,  deeds,  contracts,  wills,  laws,  com- 
pacts and  constitutions  or  charters,  declaring  and  defining 
fundamental  rights  or  privileges.  Whether  we  are  lawyers 
or  not,  we  may  be  called  upon  to  vote  upon  subjects  requir- 
ing the  interpretation  of  some  of  these ;  and  whether  we 
shall  ever  be  members  of  legislative  bodies  or  not,  every 
citizen  of  a  free  country  is  not  only  permitted  to  form  his 
opinion  upon  all  prominent  features  of  his  government, 
fundamental  laws,  public  men,  and  important  measures, 
but  it  is  his  duty  to  do  so.  Every  citizen  may  become  an 
executor  of  a  will,  in  which  he  may  be  called  upon  to  inter- 


HEEMENEUTIC8.  (jj 

pret  provisions,  which  materially  affect  the  well  being  of 
large  numbers  of  unprotected  orphans;  he  may,  in  times 
of  great  importance,  find  himself  in  an  office  of  a  delicate 
character,  and  he  may  at  any  day  be  charged  to  decide 
upon  matters  of  grave  importance,  in  the  most  sacred  char- 
acter a  citizen  can  assume,  namely,  as  a  juror.  It  will  be 
found  necessary,  therefore,  for  every  citizen  to  know  how 
to  interpret  correctly  and  faithfully,  and  however  brief, 
compared  to  the  magnitude  of  the  subject,  this  work  will 
be,  I  shall  nevertheless,  endeavor  to  lay  down  the  most 
essential  principles,  sufficient  at  least  to  direct  attention  to 
the  main  points. 

XIII.  Before  we  proceed  to  them  it  will  be  necessary 
to  settle  the  meaning  of  some  terms  respecting  construct- 
ion. Construction  is  either  close,  comprehensive,  tran- 
scendent, or  extravagant,  similar  to  the  corresponding 
species  of  interpretation.12 

1.  Close  construction  is  that  which  inclines  to  the  direct- 
est  possible  application  of  the  text,  or  the  principles  it 
involves,  to  new  or  unprovided  cases,  or  to  contradictory 
parts,  in  short,  to  subjects  which  lie  beyond  the  words  of 
the  text. 

2.  Comprehensive  construction  is  that  which  inclines  to 
an  extensive  application  of  the  text,  or  the  principles  it 
involves,  to  new,  unprovided,  or  not  sufficiently  specified 
cases  or  contradictions. 

3.  Transcendent  construction  is  that  which  is  derived 
from,  or  founded  upon,  a  principle   superior  to  the  text ; 


12  See  Supplementary  Note  B,  on  Division  of  Interpretation  by  Various  Authors, 
and  note  2,  p.  Ill  post.  —  Ed.  5 


6Q  HERMENEUTICS. 

and,  nevertheless  aims  at  deciding  on  subjects  belonging  to 
the  province  of  that  text. 

When,  in  August,  1835,  the  postmaster  of  the  city  of 
New  York  applied  to  the  postmaster-general  of  the  United 
States  for  instruction,  respecting  certain  incendiary  publi- 
cations, sent  by  persons,  usually  called  abolitionists,  to  his 
post-office  to  be  transmitted  to  the  south,  and  retained  by 
him  (the  New  York  postmaster),  the  postmaster-general 
answered,  that  there  was  no  part  of  the  postal  law,  which 
would  authorize  the  post-office  establishment  to  decline  the 
carriage  of  newspapers  or  other  publications  on  account  of 
their  contents.  Such  interference  would,  in  fact,  amount 
to  an  interference  with  the  "  freedom  of  speech,  or  of  the 
press,"  so  distinctly  guaranteed  by  the  Constitution  of  the 
United  States.  See  Mr.  Calhoun's  Report  on  the  Attempts 
to  circulate  through  the  mail  inflammatory  Appeals,  &c.  ; 
made  to  the  Senate,  February  4,  1836.  Yet  the  post- 
master-general did  not  absolutely  discountenance  the 
measure  of  the  New  York  postmaster;  he  only  throws 
him  on  his  own  responsibility,  arguing  thus:  "The  post 
establishment  is  for  the  convenience,  intercourse,  &c,  of 
and  between  the  people,  not  for  their  destruction ;  hence 
it  ought  not  to  aid  in  destructive  measures."  See  the 
letter  of  the  postmaster-general,  dated  August  4,  1835,  to 
the  postmasters  in  Charleston  and  in  New  York;  among 
other  records  of  the  times  in  Niles's  Weekly  Register,  Balti- 
more, August  22,  1835.  The  majority  of  the  people  seemed 
to  acquiesce  in  this  decision,  although  it  must  be  owned  it 
has  a  leering  similarity  with  the  decision  of  the  French 
court,  under  the  present  emperor,  establishing  the  right  of 
government  to  open   suspected  letters,  on  the  ground  that 


BERMENEUTICS.  67 

government  establishing  post-offices,  it  cannot  be  expected 
to  carry  letters  dangerous  to  itself.* 

Since  the  decision  was  firsl  made  in  1836,  the  idea  it  con- 
tained has  been  carried  much  farther,  and  the  postmaster- 
general  of  President  Buchanan  decided  thai  each  postmaster 
should  stop  and  destroy  any  inflammatory  publications  or 
papers,  meaning  of  course  writings  against  slavery.  Where 
is  it  to  stop  ?  * 

It  is  this  that  I  would  call  transcendent  construction  — 
dangerous  in  the  highest  degree,  yet  not  always  unavoid- 
able. Still,  although  at  time-  unavoidable,  it  is  wise  thai 
each  case  of  magnitude  should  be  followed,  wherever 
feasible,  by  an  act  of  indemnity,  as  it  is  termed  in  British 
terminology;  for,  although  such  an  act  may,  in  many 
cases,  be  obtained  by  the  same  power  of  popularity,  on  the 
strength  of  which  first  the  transgression  of  the  law  was 
ventured,  it  will  nevertheless  have  its  tendency  to  check. f 


*  With  reference  to  both  these  passages  see  Civil  Liberty  in  the  respec- 
tive places.  [Chap.  IX.,  notes  on  pp.  89-92,  third  ed.  by  Dr.  Woolsey, 
Phila.,  1875.  — Ed.] 

t  The  British  opposition  has  always,  and  especially  in  1807,  demanded 
that  exceptions  of  the  kind  for  which  ministers  demand  afterwards  acts  of 
indemnity,  must  be  rare,  must  not  touch  on  the  fundamentals  of  the  con- 
stitution, that  their  necessity  for  the  common  good  must  be  proved,  and 
that  this  necessity  must  not  be  caused  by  ministers.  In  the  year  1766, 
when  there  was  a  great  scarcity  of  grain  in  England,  Chatham,  then  at  the 
head  of  affairs  laid  an  embargo  on  all  vessels  exporting  -rain,  by  order  of 
council.  As  soon  as  parliament  met,  he  himself  called  it  -  an  act  of  power 
justifiable  before  parliament  on  the  ground  of  necessity."  He  read  a  para- 
graph from  Locke  to  show  that  although  his  act  was  not  legal,  yet  it  was 
rujht.  Indemnity  for  all  who  had  acted  under  it,  was  passed.  Chatham's 
Correspondence,  vol.  III.  p.  127.  In  1807  the  ministers  levied  taxes  on 
American  imports,  a  month  louger  than  allowed  by  the  American    \ 


68  HERMENEUTICS. 

In  the  Political  Ethics  I  have  spoken  of  the  unconstitution- 
ality and  destructive  tendency,  to  all  substantial  liberty,  of 
a  frequent  travelling  beyond  the  precise  limits  of  a  funda- 


The  debates  on  the  occasion  are  of  high  interest.  See  Hansard  Pari.  Deb. 
vol.  ix.  p.  99G-1001.  In  1818,  ministers  demanded  indemnity  after  the  sus- 
pension of  the  habeas  corpus  act,  not  only  for  themselves,  but  for  the 
magistrates  which  had  acted  by  direction  of  ministers  against  it.  Hansard, 
vol.  xxxyii.  In  182G,  oats  were  permitted  to  be  imported  against  law,  on 
account  of  a  failure  of  oats  in  England.  For  the  debates  on  indemnity  for 
this  act  against  law,  see  Hansard,  New  Series,  vol.  xvi.  In  1838,  however, 
indemnity  was  thrust  upon  a  high  officer.  Earl  Durham,  governor-general 
of  the  Canadas,  had  sent  some  insurgents,  having  acknowledged  the  fact 
of  having  used  arms  against  government,  to  the  island  of  Bermuda,  under 
penalty  of  death,  should  they  return.  Lord  Durham  did  it  to  save  their 
lives,  because  they  must  otherwise  have  been  executed.  The  measure  was 
declared  by  the  British  law  officers,  to  be  illegal,  because  Bermuda  did  not 
belong  to  the  governor-general's  territory,  he  therefore  could  not  bind  the 
exiled  to  stay  there ;  besides,  the  insurgents  had  not  been  legally  tried. 
Whereupon  Lord  Brougham  brought  in  the  Canada  Government  Indemnity 
bill,  which  declares  the  act  of  the  earl  illegal,  but  pronounces,  at  the  same 
time,  his  indemnity,  and  that  of  all  officers  having  aided  in  it.  The  conse- 
quence was  the  resignation  of  Lord  Durham.  See  his  proclamation  of 
October  9,  1838,  in  which  he  gives  his  reasons  for  resigning,  and  his 
opinion  of  the  indemnity  bill. 

Where  there  are  written  constitutions,  above  the  whole  legislature,  the 
case,  of  course,  is  different.  Nevertheless,  laws  of  exception  were  passed 
in  France  under  the  elder  Bourbons,  after  their  restoration.  The  charter, 
as  amended  in  1830,  says  in  article  xiii.,  that  the  king  has  not  the  power 
either  to  suspend  the  laws  themselves,  or  dispense  with  their  execution. 

Inasmuch  as  a  bill  of  indemnity  involves  the  supposition  of  a  preceding 
illegal  act,  for  which  the  ministers  ask  indemnity,  none  could  be  passed  in 
America,  for  it  would  be  suspending  the  constitution.13  If  Congress  take 
any  notice  of  acts,  considered  by  many  as  illegal,  they  can  do  nothing 
except  declare  by  resolution,  that  the  two  houses  hold  them  to  be  lawful, 
or,  in  the  contrary  case,  impeach  the  respective  officer. 

™  Upon  this  point,  see  Additional  Note  M.  on  Constitutional  Construction,  etc.— Ed. 


HBBMENEUTICS.  69 

mental  law,  of  constantly  appealing  to  the  first  and  original 
sovereign  power,  and  of  building  upon  the  principles  which 
preceded  the  laws,  constructions  to  supersede  them.  Yet 
that  which  is  dangerous  cannot,  on  this  account,  be  always 
avoided.  This  is  true  in  common  ethics ;  and  not  less  so  in 
political.  The  only  safe  way  respecting  conflicts  and  colli- 
sions, seems  to  us  boldly  to  approach  and  investigate  them, 
and  to  try  to  establish  rules  which  shall  guide  us  even  in 
their  mazes.  The  more  perplexing  the  case,  the  greater  the 
necessity  to  trace  out  its  elementary,  compouent  parts  and 
principles.  Without  this  we  shall  be  led  to  pedantry 
instead  of  truth.  It  is  far  easier  indeed  to  establish  a  few 
general  rules  and  to  pedantically  adhere  to  them,  even  in 
cases  of  conflicts,  than  to  do  what  is  essentially  right  and 
unequivocally  true. 

4.  Extravagant  construction  is  that  which  carries  the 
effect  of  the  text  beyond  its  true  limits,  and,  therefore,  is 
not  any  longer  genuine  construction,  as  the  last  named 
species  becomes  of  a  more  and  more  doubtful  character  the 
more  it  approaches  to  this.  The  difference  between  the 
two  is  this,  that  the  former  remains,  in  spite  of  its  tran- 
scendency, within  the  spirit  of  the  law,  or  document  to  be 
construed;  whilst  extravagant  construction  abandons  it. 
That  the  attempt,  by  mal-construction,  to  carry  designs 
into  the  sphere  of  an  instrument  which  are  not  contained  in 
it,  amounts  to  the  same  with  carrying  the  effect  beyond  its 
limits,  is  clear. 

The  report  to  Charles  X.,  king  of  France,  made  by  the 
whole  council  of  ministers,  presided  over  by  Prince  Polig- 
nac,  July  26,  1830,  recommended  to  the  king  the  annihila- 
tion of  an  essential   part  of  the  constitution,  namely,  the 


70  HERMENEUTICS. 

liberty  of  the  press,  guaranteed  by  article  8,  of  the  charter  ; 
and  founded  this  recommendation  on  the  power,  committed 
by  the  same  charter  to  the  king,  of  watching  over  the  safety 
of  the  state,  and  the  maintenance  of  that  very  charter  which 
the  ministers  called  a  "  return  to  the  constitution."  It  was 
considered  by  the  nation  at  large  as  an  extravagant  con- 
struction of  the  fundamental  law,  and  the  "July  revolu- 
tion" ensued,  which  not  only  overthrew  the  administration, 
but  dethroned,  likewise,  the  reigning  family.  The  history 
of  England,  especially  under  the  Stuarts,  records  many 
extravagant  constructions,  and  instances  are  not  wanting  in 
the  history  of  the  United  States. 

Thus  the  very  idea  itself,  of  the  state,  has  been  extrava- 
gantly construed ;  for  instance,  when  individuals  were 
secretly  despatched  for,  what  was  called,  reasons  of  state. 
Yet  the  chief  idea,  upon  which  the  state  is  founded,  is  the 
safety  of  its  members.  From  what  we  have  said  of  the 
natural  and  essential  character  of  power,  it  will  naturally 
lean  towards  extravagant  construction.  It  cannot  help 
doing  so,  by  its  very  nature. 


C  IT  APT  Eli     IV. 

Principles  of  Sound  Interpretation  —  Genuineness  of  the  Text  —  Falsified 
Texts  in  the  highest  as  the  Lowesl  Spheres  —  No  Sentence  ol  Words 
can  have  more  than  one  True  Sense— Double  Interpretation  i-  False 
Interpretation  —  Good  Faith  and  Common  Sense  the  Leading  Stars  of 
all  Genuine  Interpretation — Moral  Obligation  of  Legal  Counsel  — 
Lord  Brougham's  Opinion  —  Wha1  Good  Faith  is  in  Interpretation  — 
Peculiar  Circumstances  which  may  make  Subterfuges  laudable  — 
Literal  Interpretation  an  ever  ready  Means  of  Tyranny— Political 
Shuffling  —  Words  to  be  taken  in  their  most  probable  Sense  Usua 
Loquendi  —  To  what  it  may  relate  —  Rules  to  ascertain  the  Meaning 
of  doubtful  Words  — "  Contemporanea  expositio  esl  fortissima  in 
Lege"  —  Instances  — Technical  Terms  to  be  taken  in  their  technical 
Sense  —  That  which  is  inferior  cannot  defeat  thai  which  is  superior  — 
The  Text  itself  must  furnish,  if  possible,  the  Means  of  interpreting 
its  own  doubtful  Words — High  Considerations  on  account  of  which 
we  have  to  abandon  Interpretation  —  Case  of  Lord  Bentinck's  order  in 
Council,  abolishing  Whipping  of  Native  Indian  Soldiers,  and  a  Sepoy 
and  Drummer  being  lashed,  because,  having  become  a  Christian,  he 
was  not  entitled  to  the  Privilege  of  Natives  —  Case  of  Sir  Thomas 
Parkyns  —  Recapitulation  of  the  Principles  of  Interpretation. 

I.  We  shall  now  examine  the  fundamental  principles 
of  every  sort  of  interpretation,  applied  in  whatever  branch, 
to  whatever  text. 

In  the  first  place,  interpretation  must  begin  with  what 
is  likewise  the  first  rule  of  criticism.  'We  musl  convince 
ourselves  that  the  text  lie  genuine,  that  is,  that  it  have 
proceeded  from  the  utterer  from  whom  it  purports  to  have 
proceeded,  or  from  whom  others  asserl  it  to  have  pro- 
ceeded; or  that  it  belongs  to  that  period,  at  which  it  is 
maintained  that  it  originated.  This  is  a  rule  of  paramount 
importance    in   all    departments,   and    not    the    least    so   in 

(71) 


72  HEEMENEUTICS. 

politics,  whether  it  refer  to  documents  issued  by  the 
highest  authority,  or  to  reports  of  speeches,  or  to  con- 
versational sayings  of  a  political  character.1  Frauds  of 
the  most  surprising  character  have  been  practised  in  alter- 
ing and  falsifying  texts,  or  palming  entirely  spurious  ones 
upon  the  public.  They  are  daily  committed,  as  to  letters 
and  speeches,  with  flagrant  boldness  ;  laws  have  been  inter- 
polated, fictitious  charters  and  decrees  produced,  wills 
materially  changed,  or  spurious  ones  substituted,  and 
grants  of  whole  provinces  fabricated. 

The  Isidorian  Decretals,  a  collection  of  papal  ordinances 
and  resolutions  of  the  councils  of  the  church,  first  made 
by  Isidore,  archbishop  of  Seville,  who  died  in  636,  and 
afterwards  enlarged  in  the  ninth  century,  many  of  which 
are  of  great  importance  respecting  the  papal  government, 
have   been  proved   to   contain  not   a  few  spurious    ones.2 


1  It  would  seem  as  if,  with  the  care  taken  to  verify  the  acts  of  modern  legislatures 
and  their  publicity  in  print,  no  need  could  ever  arise  of  this  branch  of  interpreta- 
tion, so  far  as  they  are  concerned.  But  if  English  and  American  lawyers  are  free 
from  the  necessity  of  collating  manuscripts,  and  restoring,  by  conjecture,  corrupt 
texts,  as  the  civilians  must  still  do,  they  have  their  own  difficulties  to  deal  with. 
Three  statutes  which  had  been  repealed  by  1  &  2  Vict.,  c.  48,  were  solemnly  repealed 
again  by  21  &  22  Vict.,  c.  26.  In  1842,  the  Court  of  Queen's  Bench,  in  the  case  of 
Regina  v.  Great  Western  Railway  Company,  listened  to  much  argument  and  delivered 
an  elaborate  judgment  upon  2  &3  Edw.  VI.,  c.  24,  little  suspecting  that  it  had  been 
repealed  by  7  Geo.  IV.,  c.  64,  §  32.  And  see  other  examples  of  like  kind  in  Holland's 
Essays  upon  the  Form  of  the  Law,  p.  156. 

On  the  other  hand,  the  Supreme  Court  of  Iowa,  in  Black  Hawk  County  v.  Cotter, 
32  Iowa,  125,  held,  on  solemn  argument,  in  1871,  per  Cole,  J.,  that  the  County  Court 
had  not  a  power  which  had  been  expressly  given  it  in  1864  by  a  statute  of  the  Tenth 
General  Assembly,  chap.  75,  §  1,  overlooked  by  both  counsel  and  court. 

Upon  the  lack  of  authenticity  and  doubtful  genuineness  of  many  early  reports, 
especially  those  printed  about  the  middle  of  the  seventeenth  century,  sec  Wallace's 
Reporters,  Introduction,  §§  10-15. 

I  am  not  aware  that  any  one  has  ventured  to  raise  a  similar  question  upon  any 
part  of  the  Year-Books.  Few  examine  them  carefully  enough  to  form  an  indepen- 
dent judgment  nowadays  upon  the  subject.  But  those  who  have  had  occasion  to 
trace  their  references  from  one  book  to  another,  will  not  form  a  very  high  notion  of 
their  accuracy.  For  example,  take  the  oft-quoted  case  of  Sibyl  Belknap,  as  to  which 
see  Additional  Note  P.  —  Ed. 

-  A  very  full  account  of  the  pseudo-Isidorian  Decretals,  with  some  other  forgeries 
of  the  same  nature,  by  a  candid  and  learned  Catholic  writer,  will  bo  found  in  Walter 


HEHMEXEUTICS.  73 

So  :it  least  all  protestants,  and  many  catholics,  are  con- 
vinced. 

Luther  declared  that  first  of  all  he  must  be  convinced 
of  the  genuineness  of  the  bull  issued  against  him,  in  1519, 
before  he  could  take  any  step,  for  it  was  well  known,  he 
said,  with  what  brazen  boldness  papers  had  been  produced, 
in  his  time,  said  to  have  been  issued  under  papal  authoritv, 
but  which,  nevertheless,  proved  to  be  spurious 

The  Emperor  Napoleon  proclaimed,  in  1810,  the  con- 
cordate,  which  he  was  anxious  to  conclude  with  Pius  VII., 
then  retained  at  Fontainebleau,  as  having  been  finally 
ratified,  and,  consequently,  henceforth  to  be  observed,  as 
law  of  the  empire,  while  the  pope  declared  it  to  be  void, 
and  not  to  have  been  finally  ratified. 

During  the  late  election  struggle  for  the  first  parliament 
under  Queen  Victoria,  a  most  arduous  one  between  the 
whigs  and  tories,  entire  electioneering  letters,  purpor  ins: 
to  have  come  from  some  of  the  highest  persons  in  rank, 
went  the  rounds  of  all  the  papers,  which  nevertheless  were 
soon  after  absolutely  disavowed  and  declared,  by  their 
alleged  authors,  to  be,  from  beginning  to  end,  base  fabri- 
cations. 

In  1850,  the  Paris  papers  contained  the  declarations  of 
two  persons,  signed  by  their  names,  concerning  certain 
avowals  pretended  to  have  been  made  by  General  Cavaignac, 
regarding  the  prolongation  of  President  Bonaparte's  otfice, 
and  the  general's  readiness  to  resort  to  civil  war  under 
certain  circumstances  —  all  which  allegation  was  afterward- 
proved  to  be  absolutely  false. 


Lehrbuch  dee  Kirchenrechts,  §j  95,  09  (pp.  184,  213  of  9th  ed.,  Bonn,  1812).    The  notes 
contain  very  full  references  to  all  tbe  authorities  on  the  subject. 


74  HERMENEUTICS. 

That  reports  of  speeches,  however  honestly  made,  require 
this  kind  of  criticism  in  a  peculiarly  high  degree,  is  a  matter 
of  course.3 

II.  No  sentence,  or  form  of  words,  can  have  more  than 
one  "true  sense,"  and  this  is  the  only  one  we  have  to 
inquire  for.* 


*  Amphibolous  sentences  are  such  only  with  reference  to  the  words, 
grammar,  &c,  in  short  only  with  reference  to  form.  He  that  uttered  it 
can  have  meant  but  one  thing  or  nothing.  A  sentence  may  be,  and  very 
many  are,  amphibolous,  for  the  persons  addressed  or  the  reader,  but  it 
cannot  be  such  for  the  utterer.  It  is  the  same  respecting  drawings  or 
hieroglyphics.  A  Lion  may  signify  power,  or  Royalty  or  Generosity,  but 
the  scribe  must  have  meant,  in  using  it,  one  or  the  other,  or  he  actually 
meant  it  as  a  generic  sign  for,  say,  all  that's  noble.  In  this  case  the  sign 
answers  our  use  of  the  indefinite  article  a,  e.g.  you  shall  send  me  a 
horse.  This  sentence  has  not  several  meanings,  but  means  only  send  one 
of  your  horses ;  no  matter  which. 

3  In  1876  President  Grant  made  a  short  speech  at  Des  Moines,  Iowa,  at  a  meeting 
of  his  old  comrades  of  the  Army  of  Tennessee,  which  attracted  great  attention 
through  the  country  on  account  of  a  passage  in  it  which  seemed  to  denounce  all 
public  support  of  educational  institutions  above  the  grade  of  common  schools.  It 
was  afterwards  ascertained  that  the  passage,  as  it  stood  in  his  original  manuscript, 
had  no  such  meaning,  but  that  it  had  been  ingeniously  altered  between  the  time  of 
delivery  and  its  transmission  to  the  newspaper  office  for  publication.  As  published, 
it  read  as  follows,  the  words  and  letters  in  brackets  being  the  interpolations  which 
gave  it  a  false  sense:  — 

"  Resolve,  That  [n] either  the  State  or  nation,  [n]or  both  combined,  shall  support 
institutions  of  learning  [other  than  those]  sufficient  to  afford  to  every  child  growing 
up  in  the  land  the  opportunity  of  a  good  common-school  education,  unmixed  with 
sectarian,  pagan,  or  atheistical  tenets." 

The  evidence  of  interpolation  was  threefold.  These  bracketed  words  and  letters 
were  not  (1)  in  the  lithograph  of  a  photograph  of  Grant's  manuscript  (see  Des  Moines 
liec/ister  of  February  loth),  or  (2)  in  the  printed  report  of  the  secretary  of  the 
society  before  which  the  speech  was  delivered  (see  Gen.  Dayton's  Report,  p.  82),  or 
(3)  in  Grant's  manuscript  itself,  which  was  examined  in  the  White  House  very  soon 
afterward  (March  6,  1876),  by  W.  Flint,  Esq. 

The  forgery  was  largely  discussed  in  the  Iowa  press  of  the  time,  as  it  occurred 
contemporaneously  with  an  attack  in  the  Legislature  upon  the  State  University,  led 
by  the  individual  who  was  the  president's  host  at  Des  Moines. 

The  editor  is  indebted  for  the  above  facts  to  Prof.  L.  F.  Parker,  of  Iowa  City,  one 
of  the  editors  of  the  Common  School,  published  at  Davenport,  Iowa. 

A  garbled  extract  from  G.  W.  Featherstonhaugh's  "Tour  through  the  Western 
and  Southern  States  "  was  published  in  the  presidential  campaign  of  1844,  containing 


HERMENEl  TIC8. 

This  is  the  very  basis  of  all  interpretation.  Interpre- 
tation without  it  has  no  meaning.  Every  man  or  body  of 
persons,  making  use  of  words,  does  so,  in  order  to  convey 
a  certain  meaning;  and  to  find  this  precise  meaning  is  the 
object  of  all  interpretation.  To  have  two  meanings  in  view- 
is  equivalent  to  having  no  meaning.  The  interpretation  of 
two  meanings  implies  absurdity.  Even  if  a  man  use  words, 
from  kindness  or  malice,  in  such  a  way  that  they  may  signify 
one  or  the  other  thing,  according  to  the  view  of  him  to 
whom  they  are  addressed,  the  utterer's  meaning  i-  not 
twofold;  his  intention  is  simply  not  to  express  hi-  opinion. 
Simple  and  clear  as  this  position  is, yet  have  men  frequently 
abandoned  it,  and  history  gives  us  many  accounts  ot 
melancholy  effects  in  consequence.  The  wicked  idea  of  a 
mental  reservation  is  chiefly  founded  upon  the  abandonment 
of  this  simple  principle,  nor  has  this  simple  principle  heen 
always  acknowledged  in  law.  In  cases  of  slander,  it  was 
formerly  held  that  words  spoken  admitted  a  double 
interpretation,  the  asper  and  the  mitis.  The  former  was 
used  to  interpret  slanderous  words  of  inferiors  against 
superiors,  of  unprivileged  against  privileged  persons;  for 
instance,  of  commoners  against  peers.  And  how  asper, 
indeed,  did  the  star-chamber  make  use  of  this  deviation 
from  common  sense!  And  not  only  in  cases  of  slander, 
but  when  a  tailor  had  annoyed  a  peer  by  dunning  him, 
when  a  commoner  had  said  of  a  peer  that  he  was  no  better 
man  than  himself!     Had  the  principle  been    that  the  same 


an  interpolated  slander  upon  Mr.  Polk,  the  Democratic  candidate,  and  credited  to 
a  "tour"  made  by  an  imaginary  German  named  Roorback,  it  had  a  rapid  run 
through  the  party  press  opposed  to  .Mr.  Polk,  bat  was  Boon  exposed,  and  it-  only 
effect  was  to  add  the  term  "roorback"  to  the  political  vocabulary.  See  Bartlett's 
Dictionary  of  Americanisms  (4th  ed.),  "Roorback,"  p.  636.  —  Ei>. 


76  HERMENEUTICS. 

words  used  against  some  persons  are  more  punishable  than 
used  against  others,  the  case  would  have  been  different. 
This  principle  is  acted  upon  everywhere.  The  Prussian 
code  gives  the  right  of  disinheriting  a  child  for  having 
used  bad  names  against  the  parent.  Disrespectful  words 
against  a  judge  on  the  bench  are  far  differently  punished 
from  what  they  would  be  if  directed  against  him  in  common 
company.  But  the  principle  actually  employed  in  the 
instances  before  given  was  that  of  double  interpretation; 
in  short,  interpretation  was  mistaken  for  the  act  of  bringing 
a  sense  into  the  words,  instead  of  acknowledging,  as  its 
sole  legitimate  office,  that  of  bringing  the  sense  out  of 
them.  It  is  this  mistake  alone  which  has  actually  produced 
with  many  persons  so  strong  an  aversion  to  the  very  word 
"  interpretation." 

The  fictitious  law  case,  composed  by  Pope  and  Fortescue 
as  having  ensued  in  consequence  of  Sir  John  Swale  having 
bequeathed  to  his  friend,  Mr.  Stradling,  "all  my  black 
and  white  horses,"  when  there  were  found  six  black 
horses,  six  white  ones,  and  six  that  were  black  and  white, 
or  pied  horses,  is  certainly  entertaining.  Yet  the  question, 
as  it  was  stated  by  those  gentlemen,  "whether  the  pied 
horses  were  included  in  the  legacy,"  ought  never  to  have 
arisen.  As  there  can  be  but  one  meaning  attached  to  any 
sentence,  the  testator  could  not  have  meant  by  his  words 
all  black  and  all  white  horses,  and,  at  the  same  time,  all 
black  and  white  horses.  The  only  difficulty  arising  from 
this  will  could  be  this ;  whether  the  testator  meant  to 
bequeath  to  Mr.  Stradling  all  black  and  all  white  horses, 
or  all  black  and  white  horses. 

Nothing  is   more   frequent,  in   tyrannical    governments, 


HERMENEUTICS.  77 

than  that  the  same  law  is  made,  according  to  the  purposes 
of  determining  each  single  case,  to  mean  all  black  and  all 
white  horses,  and,  at  the  same  time,  all  black  and  white 
horses.  Laws  are  made  political  see-saws  ;  for  the  indelible 
moral  nature  of  men  forces  even  a  tyrant,  to  prefer,  as 
long  as  possible,  the  protection  of  the  law  ;  nay,  rather 
the  mere  pretence  of  protection  by  the  letter,  the  very 
shadow  of  the  law,  to  the  bare  and  bold  confession  of 
power  alone,  as  the  sole  basis  of  his  demands. 

III.  In  no  case  of  human  life,  in  which  we  are  called 
upon  to  act,  to  apply  rules  or  to  understand  what  others 
say,  can  we  dispense  with  common  sense  and  good  faith,* 
but  they  are  peculiarly  requisite  in  interpretation,  because 
its  object  is  to  discover  something  that  is  doubtful, 
obscure,  veiled;  which,  therefore,  may  admit  of  different 
explanations.4  If,  without  common  sense,  we  may  make 
even  of  strict  syllogism  an  instrument,  apparently,  to  prove 
absurdities,  how  much  more  are  those  two  ingredients  of 
all  honesty  necessary  in  interpretation.  Common  sense 
and  good  faith  are  the  leading  stars  of  all  genuine  inter- 
pretation. Be  it  repeated,  our  object  is  not  to  bend,  twist, 
or  shape  the  text,  until  at  last  we  may  succeed  in  forcing 
it  into  the  mould  of  preconceived  ideas,  to  extend  or  cut 
short  in  the  manner  of  a  Procrustes,  but  simply  and  solely 
to  fix  upon  the  true  sense,  whatever  that  may  be. 

It  has  been  mentioned  already,  that  the  species  of 
interpretation    which    was    called    predestined    is,    under 


See  Pol.  Ethics,  vol.  i.  book  i.  ch.  6. 


*  Compare,  however,  what  the  author  has  said  in  Chap.  I.  on  the  necessity  of  In- 
terpretation in  all  cases  where  language  is  employed.  —  Ed. 


78  HERMENEUTICS. 

certain  circumstances  and  with  certain  limits,  allowed  to 
be  used  by  legal  counsel.  But  they  must  take  heed  that 
they  do  not  injure,  in  so  doing,  the  peace  and  safety  of 
others.  It  would  be  absolutely  immoral,  if  a  counsel,  by 
artful  interpretation,  were  to  throw  plausible  suspicion 
upon  an  innocent  individual ;  that,  however,  which  is 
absolutely  immoral,  cannot,  under  any  circumstances,  be 
admissible.  Knowingly  to  rob  a  person  of  lawful  property, 
by  artful  interpretation  in  favor  of  the  client,  will  be 
declared  by  the  conscience  of  every  lawyer  to  be  immoral. 
Yet  to  fix  the  precise  limit  between  the  demands  of  public 
justice  in  countries  in  which  it  is  believed  that  civil  liberty 
depends  in  a  great  measure  upon  the  fact  that  the  court  be 
entirely  neutral,  so  long  as  the  case  is  debating,  and  where 
it  does  not,  therefore,  direct  the  eliciting  of  the  whole 
truth,  even  from  the  prisoner,  and  where  there  is  the 
grave  duty  of  the  counsel  to  do  every  thing  in  favor  of 
the  client,  on  the  one  hand,  and,  on  the  other  hand,  the 
stern  demand  that  justice  be  done  in  reality,  and  not  in 
appearance  ;  that  the  innocent  be  not  injured  ;  that  morality 
be  not  compromised  ;  the  fact  that  courts  are  established  by 
society  for  society,  for  the  sake  of  justice,  not  to  be  arenas 
for  the  dialectic  skill  of  disputants  —  to  fix  the  precise  limit 
between  these  two  grave  demands  of  liberty  and  justice,  is 
one  of  the  most  difficult  subjects  in  the  whole  range  of 
political  ethics  —  a  subject  worthy  of  the  highest  and  most 
fearless  intellect,  the  purest  honesty  and  humanity,  and  the 
profoundest  as  well  as  most  extensive  learning.  It  is  a 
subject,  the  philosophic  treatment  of  which  is  more  urgently 
asked  for,  the  more  civil  liberty  is  extended  and  the  more 
when  undefined  notions,  in  regard  to  forensic  ethics,  seem 


lll.KMKM.I    TICS.  79 

to  be  afloat.  It  seems  sometimes  actually  as  if  it  were 
thought  that  of  all  rational  beings  on  the  face  of  the  »lobe, 

the  adv. .,-ate  alone  were  absolved  from  all  morality  and 
ethic  obligation.  Though  Lord  Brougham,  when  he 
defended  Queen  Caroline,  may  have  been  urged  to  say  far 
more  in  the  warmth  of  pleading,  than  he  would  calmly 
maintain,  it  is,  nevertheless,  startling  in  the  highest  decree 
if  such  a  man  dares  to  assert  that  "an  advocate,  in  the 
discharge  of  his  duty,  knows  hut  one  person  in  all  the 
world,  and  that  person  is  his  client.  To  save  that  client 
by  all  means  and  expedients,  and  at  all  hazards  and  costs 
to  other  persons,  and  among  them,  to  himself,  is  his  firsl 
and  only  duty;  and  in  performing  this  duty,  he  musl  not 
regard  the  alarm,  the  torments,  the  destruction,  which  he 
may  bring  upon  others.  Separating  the  duty  of  a  patriot 
from  that  of  an  advocate,  he  must  go  on,  reckless  of 
consequences,  though  it  should  be  his  unhappy  fate  to 
involve  his  countiyr  in  confusion."* 

If  there  be  a  person  who  does  not  see  at  once,  how 
untenable  this  remark  is,  let  him  imagine,  the  then  Mr. 
Brougham  to  have  said,  "  it  is  the  duty  of  an  advocate   to 


*  Provided  his  speeches  on  that  occasion  are  correctly  reported  in  the 
Trial  of  the  Queen  of  England,  before  the  Peers  of  Great  Britain,  2  vols. 
London,  1820.  I  do  not  know  of  a  disavowal  on  the  part  of  Lord 
Brougham;  but  if  there  exists  one,  should  rejoice  at  its  greater  publicity. 
I  repeat,  that  this  remark  may  have  been  elicited  by  the  cry  of  the  tories, 
that  the  wings  used  that  occasion  only  to  disturb  the  peace  of  England, 
a  charge  which  came  indeed  with  bad  grace  from  those  who  had  instituted 
the  trial  to  satisfy  the  personal  rancor  of  such  a  monarch  as  Georg<  IV.. 
against  their  own  conviction.  The  words  of  Lord  Brougham  have  been, 
repeatedly,  taken  notice  of,  among  others  in  an  article  on  the  License  of 
Counsel,  Westminster  Review,  LXVIIi.,  January  1611,  signed  E. 


80  HERMENEUTICS. 

save  his  client  at  all  hazards,  even  should  he  bring  shame 
upon  his  own  mother."  And  why  is  this  more  frightful 
than  what  Mr.  Brougham  actually  asserted?  In  short,  he 
forgot,  as  we  are  all  so  apt  to  do,  the  object,  and  remem- 
bered the  means  only.  Justice  is  the  object  of  trials,  and, 
for  the  better  obtaining  it,  it  is  thought  that  counsel  on 
both  sides  should  state  all  that  can  be  said ;  but  the  object 
is  not  to  save  every  person.  If  so,  we  act  very  strangely 
in  trying  the  person  at  all.  But  although  different  duties 
may  devolve  upon  different  individuals,  and  continually  do 
so,  still  the  final  object  and  ultimate  duty  remains  the  same. 
The  lawyer  does  not  cease  to  be  a  citizen,  nor  cease  to  be  a 
man,  and  all  the  fundamental  obligations  are  the  same  for 
him  as  for  all  others.  I  doubt  whether  ever  a  bolder  asser- 
tion has  been  made  in  the  most  fanatical  periods  respecting 
the  obligations  of  propagating  true  religion,  and  extirpating 
heretics.  The  simple  question  Why?  puts  the  whole  asser- 
tion to  naught.  As  to  separating  the  duty  of  a  patriot 
from  that  of  advocate,  it  amounts  to  words,  and  words 
only.  Moral  obligations  are  eternal  and  immutable,  though 
the  acts,  which  the  same  obligations  require,  may  differ  in 
different  situations.  If  it  is  a  duty  to  be  patriotic  at  all, 
we  can  no  where  be  absolved  from  it,  although  patriotism 
may  demand  different  acts,  in  time  of  war,  from  an  only 
son,  who  supports  aged  persons  and  minor  sisters,  and  from 
a  son  of  a  hale  and  healthy  father,  or  a  man  who  stands 
single  in  life. 

IV.  Good  faith  in  interpretation  means  that  we  con- 
scientiously desire  to  arrive  at  truth,  that  we  honestly 
use  all  means  to  do  so,  and  that  we  strictly  adhere  to  it, 


HEEMENEUTIC8.  81 

when  known  to  us  —  it  means  the  shunning  of  subterfuges, 
quibbles  and  political  shuffling — it  means  thai  we  take 
the  words  fairly  as  they  were  meant.6 

Pope  Sixtus  IV.  was  bent  on  breaking  down  the  Roman 
house  of  Colonna.  He  besieged  the  fortress  of  .Marino, 
held  by  the  Colonnas.  One  member  of  this  family,  the 
prothonotary  Colonna,  was  a  prisoner  in  the  hands  of  the 
pope,  who  offered  to  give  up  the  captive,  if  his  family 
would  surrender  Marino.  The  oiler  was  accepted,  and  the 
gates  of  the  fortress  were  opened.  On  the  other  hand,  the 
pope   gave  up   the  prothonotary,  but  —  after  having  slain 


6  The  rule  laid  down  by  Cicero,  Semper  autem  in  fide  quid  senseris,  non  quid  dix 

eris,  cogitandum,  is  often  quoted  in  thi~    uection,  to   the  great   confusion  of 

thought.    For  it  is  evident,  from  Cicero's  own  words,  that  the  rule  is  one  of  ethics, 

del  c running  what  a  man  may  think  himself  bound  to  by  a  promise  in  g I  faith,  not 

one  of  law,  regulating  the  enforcement  or  the  interpretation  oi  the  obligation  by 
others.  Cicero  gives,  as  an  example  of  the  ill-faith  reprehended,  the  storj  of  the 
captive  who  was  permitted  by  Hannibal  to  go  to  Rome  after  the  battle  of  Cannae, 
upon  an  oath  that  he  would  return  if  not  ransomed.  He  stepped  back,  after  leaving 
the  camp,  on  the  pretext  of  having  forgotten  something,  and  afterwards  claimed 
thai  the  oath  was  fulfilled  by  this  return.  "And  he  was  bo  in  words,  but  not  in 
fact,"  says  Cicero ;  "  but  in  a  question  of  good  faith,  it  is  what  you  have  meant,  not 
what  you  have  said,  that  is  to  be  considered."  De  Officiis,  Lib.  I.,  c.  13.  Through- 
out the  entire  work,  Cicero  fails  to  distinguish  legal  and  moral  obligation.  Puffen- 
dorf  explains  ibis  rule  a<  meaning  only  that,  where  a  party  is  free  to  bind  himself 
or  not,  he  is  bound  only  mi  far  as  he  intended  to  be,  —  in  thai  sense  a  mere  truism, — 
and  then  adds:  "But  such  is  man's  nature,  that  the  inner  motions  of  his  SOUl  can 
never  be  known  to  others,  and  may  not  accord  with  signs  and  exterior  acts.  Still,  it 
is  absolutely  necessary  to  determine,  in  a  distinct  and  precise  manner,  to  w  hat  each 
man  is  obliged,  and  what  may  be  lawfully  demanded  of  him.    if  it  were  allowed  to 

take  the  obligations    into   which   one    has   entered   a~    lie    himself  would    have   them, 

there  is  no  one  of  which  the  effect  might  not  be  eluded  by  a  claim  that  the  party  had 

in  mind  an  entirely  different  thing  from  that  underst 1  by  the  other  party.     A-  our 

thoughts,  then,  are  for  ourselves  alone,  and  external  signs  for  others,  reason  re- 
quires that,  when  a  contract  has  been  entered  into,  the  obligee  should  have  the  right 
to  require  Of  the  Obligor  all  that  a  right  and  natural  interpretation  of  the  signs  made 
use  of  would  give  him."  Puffendorf,  Lib.  V.,  c.  12,  §  2.  It  is  the  intention  of  the 
party  that  binds  him;  but  what  that  intention  was  is  to  be  learned,  not  from  hi-  own 
assertion  or  understanding  of  it,  but  from  the  words  or  signs  in  which  it  has  been 
clothed.  And  it  is  worth  remarking  here,  that  t  he  original  sense  of  the  term  unit  unt 
pa   turn  was  a  pact  or  obligation,  formed,  or  supposed   to   be  formed,  in  the  mind,  but 

not  as  yet  clothed  with  Buch  words  or  signs  as  the  law  could  take  notice  of  and  en- 
force. It  is  so  used  by  Bracton.  The  eon  mi  on  English  use  of  the  term  for  a  promise 
without  a  consideration  is  of  later  dale,  and  grew  out  of  the  action  of  assumpsit.— 
Ed. 

6 


82  HERMENEUTICS. 

him.  Allegretto  Allegretti,  Diari  Sanesi,  p.  817,  gives  the 
words  of  despair  and  the  curse,  against  the  faith  of  the 
pope  and  all  that  thus  shall  keep  their  word,  into  which  the 
mother  of  Colonna  broke  out,  when  she  lifted  up  the 
severed  head.  The  instance  given  by  Vattel  (B.  II.  ch. 
XVII.  273)  is  well  known.  "  Mahomed,  Emperor  of  the 
Turks,  at  the  taking  of  Negropont,  having  promised  a  man 
to  spare  his  head,  caused  him  to  be  cut  in  two  through  the 
middle  of  the  body." 

Cardinal  Bentivoglio,  papal  nuncio  at  Brussels,  about  the 
year  1(314,  considered  the  possession  of  the  fortress  of 
Wesel  necessary,  because  it  appeared  to  him,  the  "Rhenish 
Geneva."  Spinola  besieged  it,  and  it  had  to  surrender. 
The  capitulation  stipulated  that  one  thousand  Spaniards 
should  be  garrisoned  in  the  place  ;  he  put  three  thousand 
into  it.  The  citizens  complained  of  the  infringement  of 
the  capitulation,  when  Spinola  answered,  that  the  instru- 
ment did  not  express  that  not  more  than  a  thousand  sol- 
diers should  form  the  garrison.*  Spinola  was  wrong, 
because  his  interpretation  was  not  faithful,  and  he  erred, 
besides,  against  another  principle  of  interpretation,  which 
will  be  stated  farther  below. |  6 


*  Gaf,  Hist,  of  the  Synod  of  Dort;  Ludolf,  Theatre  I,  491,  both  in 
German. 

■)■  I  add  the  following  additional  proof  how  strongly  men  try  to  deceive 
themselves  by  subterfuges,  when  they  have  not  sufficient  boldness  plainly 

6  Those  who  maintain  that  the  world  does  not  advance  in  morals  must  find  it 
difficult  to  explain  the  marked  change  which  has  come  over  its  notions  of  good 
faith,  and  the  basis  of  obligations,  since  the  Dark  Ages.  It  is  certain  that  then  men 
regarded  themselves  as  conscientiously  bound,  or,  on  the  other  hand,  as  conscien- 
tiously acquitted,  by  processes  which  to-day  would  be  contemptuously  rejected  as 
the  merest  quibbles  or  subterfuges.  The  jurisprudence  of  the  Anglo-Saxon  period, 
and  even  the  Year-Books,  are  full  of  cases  where  a  technical  compliance  with  cer- 
tain forms  is  the  test  of  justice,  utterly  irrespective  of  the  effect.    The  famous  oath 


HERMENEUTIC8.  83 

V.     The  character,  however,  of  the  transaction  to  which 
the  words,  to  be  interpreted,  relate  may  be  so  peculiar  that 


to  avow  that  they  intended  to  cheat.  Our  age  furnishes  as  with  instances 
quite  as  surprising,  in  courts  ami  in  politics.  Burton,  Narratives  from 
Criminal  Trials  in  Scotland,  London,  1852,  has  this  pass;p_r,. :  "Tin-  2d  of 
October,  this  year,  the  notorious  thief  and  rebel,  Alaster  .Macuregor,  laird 
of  Glentrae  &c.  was  taken  by  Archibald,  earl  of  Argyle,  who,  before  Le 
would  yield,  had  promised  to  him  to  convey  him  safe  out  of  Scottish 
ground;  to  perform  which  promise,  he  caused  some  servants  to  convey 
him  to  Berwic,  and  besouth  it  some  miles,  and  bring  him  back  again  to 
Edinburgh,  where  he  was  hanged  with  many  of  his  kindred  the  20th  day 
of  January.1'     Annals  of  Scotland,  edited  by  T.  Haig,  I.  415. 

The  student  may  here  be  referred  to  the  decision  of  all  the  judges  of 
England,  at  Westminster,  concerning  the  validity  of  the  delivery  of  the 
list  of  jurors  to  the  indicted  person,  before  the  time  fixed  by  act  of  par- 
liament, 7  Anne,  c.  21,  §  11.  See  Townsend's  Modern  State  Trials,  London, 
1850,  the  trial  of  John  Frost  at  .Monmouth,  in  1830,  for  hiirh  treason  before 
Lord  Tindal.  There  is  an  article  on  this  work  in  the  October  number  of 
Blackwood,  which  contains  the  decision  of  the  judges. 

of  Harold  is  a  marked  illustration.  The  trick  by  which  William  of  Normandy  hid  a 
mas-  (if  relics  under  the  altar  on  which  he  swore,  was  evidently  regarded  by  Harold 
himself,  ami  by  all  his  contemporaries,  as  imposing  a  weighty  obligation.  lie  would 
have  fell  little  or  ii"  compunction  in  breaking  a  promise,  or  even  in  violating  an 
oath  sworn  in  the  highest  "f  all  names.  The  notion  of  the  times,  that  the  obliga- 
tion of  an  oath  was  enhanced  by  its  repetition  upon  several  altars,  points  to  the 
same  conclusion.  So,  all  the  rules  of  trial  by  ordeal  make  the  result  dependent 
upon  the  exact  fulfilment  of  certain  technical  conditions.  If  these  Could  be  evaded 
without  contradicting  the  outward  expression  of  the  rule,  the  claims  of  justice 
were  equally  satisfied.  The  legends  of  the  saints,  too,  abound  in  anecdotes  of  the 
advantages  they  obtained  over  the  devil,  ami  sometimes  even  over  the  Deity  him- 
self, by  verbal  quibbles  which,  at  the  present  day,  would  hardly  rise  to  the  dignity 
of  a  pun;  and  the  significant  fact  is,  that  such  stories  were  related  and  ac< 
without  the  slightest  doubt  of  their  perfect  morality. 

\.\  ery  lawyer  who  has  studied  the  earlier  decisions  upon  pleading  in  our  own  law, 
or  the  contemporary  works  of  the  civilians,  must  have  been  struck  with  the  same 
fact.  The  main  object,  on  both  sides,  was  to  find  expressions  literally  consistent 
with  the  requirements  of  the  law.  while  evading  entirely  its  meaning  and  spirit. 
The  same  ingenuity  was  employed  later  to  explain  away  the  force  of  slanderous 
words,  —  as,  when  it  was  held  that  "  thou  hast  poisoned  Smith  "  was  not  actionable, 
because  the  poisoning  might  have  been  unintentional.  Miles  v.  Jacob,  Hob.  pp. 
0,  268. 

Leyser,  Med.  ad  Pand.  Supp.  Spec.  I..  Tom.  XI.,  p.  170,  relates  a  case  of  a  defendant, 
sued  for  libel  in  charging  plaintiff  with  sodomy,  who  defended  himself  on  the 
ground  that  he  h;nl  i 1  the  words  in  mitiori sensu,  as  in  Isaiah,  iii.  9.  This  illus- 
trate-, also,  what  our  author  says  in  sec.  XII.  of  this  chapter,  in  relation  to  the 
use  of  tropes.— Ed. 


84  HERMENEUTICS. 

we  cannot  withhold  our  approbation  from,  or  disown  to  be 
fair,  what  in  other  cases  would  be  justly  termed  subterfuge.7 

German  history  gives  a  remarkable  instance  of  this  kind 
in  the  women  of  Weinsberg.  After  Kino;  Conrad  had 
defeated,  in  1140,  Duke  Guelf  VI.,  in  the  battle  of  Weins- 
berg, this  city  was  besieged,  and  soon  reduced  to  the  neces- 
sity of  surrendering.  The  men  were  doomed  to  die.  Upon 
this,  the  women  implored  Conrad  to  allow  them,  at  least, 
to  take  away  so  much  of  their  treasures  as  each  could  carry 
on  her  back.  The  request  was  granted ;  but  when  the 
appointed  hour  of  their  departure  arrived,  a  long  procession 
of  women  appeared,  each  carrying  her  husband.  Duke 
Frederick,  the  king's  brother,  was  enraged,  but  Conrad 
said:  "A  royal  word  must  not  be  twisted;"  and  the 
faithful  wives  were  now  allowed  to  carry  away  their  other 
treasures  likewise.  Raumer's  History  of  the  Hohenstaufen, 
Vol.  I.  p.  397.  Some  hypercritics  have  doubted  the  fact, 
but,  according  to  this  distinguished  historian,  unreason- 
ably so. 

Here,  the  fact  that  the  proposition  came  from  the  women 
and  that  they  made  it  purposely,  in  a  maimer  that  Conrad 
should  be  deceived,  was  decidedly  against  them,  according 
to  the  principles  of  hermeneutics.     There  would  not  even 


7  When  the  General  Assembly  of  Scotland,  in  July,  1648,  espoused  the  cause  of  the 
king,  they  did  not  propose  to  invade  England,  but  only  resolved  upon  "the  endeav- 
oring to  bring  his  majesty,  with  honor,  freedom,  and  safety,  to  one  of  his  houses  in  or 
about  London  !  "    Plain  Keasons  for  Dissenting,  Glasgow,  1787,  p.  296. 

"  To  the  soft  words  which  cover  sharp  strokes  of  European  diplomacy,  like  the 
velvet  tissues  around  the  claws  of  cats,  must  now  be  added  the  English  noun  'pro- 
tectorate,' as  anybody  will  understand  who  reminds  himself  of  the  British  protec- 
torate over  Cyprus,  the  protectorate  of  Austria  over  Bosnia,  and  the  proposed 
protectorate  of  France  over  Tunis.  Under  the  new  application  of  the  word,  we  must 
expect  our  dictionary-makers  now  to  substitute  for  the  old-fashioned  meaning  of  the 
verb  "  to  protect,"  a  new-fashioned  sense,  meaning  "  to  absorb,"  "  to  annex,"  or  "  to 
prey  upon,"  the  verb  thus  getting  a  kind  of  inverse  meaning,  like  that  of  the  Latin 
word  for  a  grove,  which  was  called  Incus,  because  it  was  shady,  and  did  not  shine.'' 
New  York  Evening  Post,  August  14,  1878. —  Ed. 


BERMENE1  TICS.  85 

be  claimed  for  them  the  rule  of  construction,  which  gives 
the  benefit  of  doubt  to  the  weak,  or  makes  us  Incline  in 
doubtful  cases  toward  mercy;  because  the  truth  was,  thai 
according  to  faithful  interpretation  there  was  no  doubl 
whatever,  as  to  the  meaning  in  which  the  women  had  been 
desirous  that  Conrad  should  take  the  word  "treasure,"  in 
which  he  actually  had  taken  it.  Yet  what  generous  soldier 
would  not  have  granted  them  the  full  benefil  of  their 
praiseworthy  subterfuge  and  noble  deception? 

Lately  a  flute-player  advertised  in  an  English  town,  that, 
between  the  acts,  he  would  exhibit  the  extraordinary  feat 
of  holding  in  his  left  hand  a  glass  of  wine,  which  he  would 
drink,  though  the  six  strongest  men  of  the  place  should 
hold  his  left  arm  and  try  to  prevent  him  from  bringing 
the  glass  with  it  to  his  lips.  Six  stout  men  accordingly 
grasped  his  arm  at  the  night  of  the  performance,  when  he 
quietly  advanced  his  right  hand,  took  the  glass,  and  quaffed 
the  wine.  Now,  there  are  many  countries  in  which  "  trick- 
ing the  public"  is  punishable.  Some  judicial  proceeding 
might  have  been  the  consequence  ;  but  though  the  flute- 
player  evidently  resorted  to  a  quibble,  he  must  have  been 
acquitted;  because  his  advertisement  showed  to  every 
intelligent  man,  that  his  words  could  not  be  meant  to  be 
taken  in  a  plain  sense.  There  is  no  reason  why  the  man 
should  not  have  the  benefit  of  his  wit,  if  the  public  choose 
to  be  gulled.  They  took  the  true  ground  in  the  above  case, 
and  applauded  the  ingenious  deceiver.* 


*  We  have  seen  already,  chap.  II.  iv.  how  necessary  common  sense  is, 
to  make  the  commonest  intercourse  among  men  a  matter  of  possibility. 
Another  instance  is  strikingly  exhibited  in  the  clown  of  the  low  comedy. 
The  greater  part  of  the  jokes,  by  which  these  personages  make  the  heart  I  - 


86  HERMENEUTICS. 

VI.  That  artifice,  to  which  revengeful  tyranny  so  often 
resorts  to  obtain  its  objects  without  incurring  the  direct 
charge  of  sruilt,  or  to  which  a  troubled  conscience  has 
recourse  to  appease  its  remorse,  or  which  we  use  when  we 
are  anxious  to  throw  the  guilt  from  our  shoulders,  in  cases 
of  divided  responsibility,  is  generally,  in  its  essence,  founded 
upon  literal  or  unfaithful  interpretation. 


laugh,  rest  on  literal  interpretation  and  the  contrast  between  the  sense 
which  the  spectator  attaches  to  a  sentence,  and  that  in  which  the  merry- 
anclrew  takes  it.  Almost  the  entire  story  of  the  far-famed  Eulenspiegel  is 
founded  upon  literal  interpretation.  Puns  are  generally  nothing  else. 
Nor  does  this  contrast,  and  surprise  caused  by  it,  belong  to  the  lower 
sphere  only;  the  finest  wit,  the  sweetest  passages,  as  well  as  the  most 
majestic,  of  a  Shakspeare,  often  turn  upon  it.  That  touching  anecdote  of 
Pope  Gregory  the  Great,  meetiug  with  enslaved  Angles  in  the  market  of 
Kome,  and  the  conversion  of  the  British  to  Christianity,  which  was  caused 
by  it,  is  founded  upon  literal  interpretation.  Palgrave,  in  his  History  of 
the  Anglo-Saxons,  relates  it  thus.  Pope  Gregory  chanced  to  see  some 
beautiful  Saxon  boys  offered  as  slaves,  and  he  asked:  "To  what  nation 
do  these  poor  boys  belong?"  The  dealer  answered,  "They  are  Angles, 
Father."  "Well  may  they  be  so  called,  for  they  are  as  comely  as  angels; 
and  would  that,  like  angels,  they  might  become  cherubim  in  heaven !  But 
from  which  of  the  many  provinces  of  Britain  do  they  come?"  "From 
Deira,  Father."  "Indeed,"  continued  Gregory,  speaking  in  Latin,  "De 
ira  Dei  liberandi  sunt."  And  when,  on  asking  the  name  of  their  king,  he 
was  told  it  was  Ella,  or  Alia,  he  added,  that  "Allelujah  —  praise  ye  the 
Lord  —  ought  to  be  sung  in  his  dominions." 

But  the  object  of  law  and  politics  is  neither  to  amuse  nor  to  touch;  we 
must  discard,  therefore,  literal  interpretation.8 

8  It  certainly  was  not  the  intention  of  the  secretary  of  war,  Gen.  John  A.  Dix,  in 
issuing  his  famous  order  of,  "If  any  man  hauls  down  the  American  flag,  shoot  him 
on  the  spot!"  that  every  flag  in  the  country  should  be  kept  flying  night  and  day  until 
worn  out.     Vet  a  literal  interpretation  of  the  order  would  imply  nothing  else. 

It  maybe  questioned,  however,  whether  the  term  literal  interpretation  is  justly 
used  here.  Such,  certainly,  is  not  the  common  understanding  of  it,  except  when 
witticisms  or  metaphors  are  the  subject  of  interpretation.  A  literal  interpretation 
in  ordinary  colloquial  usage  means  very  nearly  what  our  author  would  express  by 
the  word  Interpretation  alone  (as  distinguished  from  Construction),  without  any 
qualifying  adjective.    See  paragraphs  X.,  XI \  .,  in  the  text  of  this  chapter. —  Ed. 


HEEMENE1   I  l<  3.  87 

At'icr  the  Infamous  Jeffreys  had  done  all  hi  his  power, 
during  the  trial,  to  ruin  Algernon  Sidney,  he  declared, 
when  pronouncing  the  sentence,  thai  he  had  nothing  to 
do  with  the  matter,  except  to  pronounce  the  law;*  the 
jury  had  derided  that  Sidney  was  guilty  of  treason ;  and 
no  doubt,  had  he  himself  been  brought  to  trial  when  James 
was  expelled,  he  would  have  used  this  as  an  argument  for 
his  defence. 

The  Spanish  Inquisition  never  sentenced  a  man  to  die, 
for  the  church  seeks  not  the  death  of  men  :  it  only  declared 
the  culprits  to  be  heretics,  and  handed  them  over  to  the 
secular  authority.  If  thought  necessary,  the  heretic  was 
burnt,  the  officers  of  the  inquisition  being  present.  Yet, 
as  late  as  about  1822,  it  was  stoutly  maintained  that  the 
inquisition  had  nothing  whatsoever  to  do  with  the  death  of 
any  heretic. f 

In  these  cases  of  political  shuffling,  which  extends  into 
all  branches  of  politics,  the  di'vd  is  represented  as  floating, 
as  it  were,  between  the  actors  ;  each  one  having  performed 
but  a  part,  is  free  of  responsibility;  as  if  two  men  might 
commit  an  act  of  forgery  between  them,  but  each  one 
remain  not  guilty  of  forgery,  by  having  severally  done  an 
act,   in   itself  and    singly,  lawful.     This   will    remind    the 


*  See  Sidney's  Trial,  in  the  Memoirs  of  his  Life,  in  his  Dis  courses  on 
Government,  &c,  4to  ed. 

t  The  title  of  the  book  f  have  forgotten,  but  its  two  arguments  wore, 
first,  as  I  stated,  that  political  shuffling,  and  secondly,  that  the  heretics  in 
Spain  were  nearly  all  actual  trait  »rs,  politically  speaking  —  alluding  to  the 
poor  Moriscos.  It  is  the  view  which  Mr.  Capefigue,  in  his  "Richelieu, 
Mazarin,  la  Fronde  et  Louis  XIV.,"  Pari-,  L835,  8  vols.,  seems  to  take. 
The  only  modern  work  of  extent  on  the  Spanish  Inquisition,  which  deserves 
to  be  consulted  as  authority,  is  Llorente's  History  of  the  Inquisition. 


88  HERMENEUTICS. 

reader  of  the  thugs  who  had  "holders  of  hands,"  "holders 
of  feet,"  and  those  who  stopped  the  breath  of  their  victims, 
or  of  Sterne's  two  nuns  who  uttered  a  word  very  unbecom- 
ing between  them,  by  each  one  pronouncing  one  syllable 
only,  in  order  to  avoid  the  guilt  of  swearing. 

The  memoirs  of  any  man,  who,  high  in  power,  has  been 
desirous  of  justifying  reproachful  acts,  will  always  be  found 
replete  with  this  shuffling  on  the  ground  of  literal  interpre- 
tation, for  instance,  the  late  Memoirs  of  Godoy,  the  Prince 
of  the  Peace,  who  was  for  a  long  time  the  actual  ruler  of 
Spain,  in  the  name  of  Charles  IV. 

VII.  Faithful  interpretation  implies  that  words,  or 
assemblages  of  words,  be  taken  in  that  sense,  which  we 
honestly  believe  that  their  utterer  attached  to  them.  We 
have  to  take  words,  then,  in  their  most  probable  sense,  not 
in  their  original,  etymological,  or  classical,  if  the  text  be 
such  that  we  cannot  fairly  suppose  the  author  used  the 
words  with  skill,  knowledge,  and  accurate  care  and  selec- 
tion. Grotius  says :  si  nulla  sit  conjectura  quce  ducat  alio, 
verba  intelligenda  sunt  ex  proprietate,  non  grammatica  quce 
est  ex  origine,  sed  populari  ex  usu.  ' '  Quern  penes  arbitrium 
est  et  jus  et  norma  loquendi."  De  Jure  Bel.  et  Pac.  Lib. 
II.  c.  XVI.  II.* 


*  It  is  different,  if  our  object  is  scientifically  to  settle  which  significa- 
tion we  ought  to  give  to  a  word,  if  we  write  ourselves,  not  that  which  has 
been  given  by  others,  in  common  writing,  or  if  we  have  to  find  out  the 
signification  a  word  had  in  former  periods.  In  these  cases,  its  etymology 
is  frequently  of  much  importance ;  for  if  it  does  not  unfold  to  us  the  entire 
and  present  signification  of  a  word,  the  origin  and  history  of  a  word  will, 
nevertheless,  shed  considerable  light  upon  its  signification  in  many 
instances.      Etymology  becomes    especially  valuable  in  settling  the  pre- 


HEBMENEUTIC8.  89 

VIIT.  According  to  the  character  of  the  text  before  us, 
we  are  obliged  to  take  words,  either  in  their  common  adap- 
tation in  daily  life,  or  in  the  peculiar  signification  which 
they  have  in  certain  arts,  sciences,  sects,  provinces,  &c,  in 
short,  we  have  to  lake  words  according  to  what  is  termed 
usus  loquendi.  Horse,  in  common  language,  means  a  com- 
mon animal  ;  in  a  marine  insurance  case,  it  might  mean 
this  animal  or  a  certain  part  of  the  vessel ;  the  connexion 
in  which  the  word  stands  with  others  must  give  the  deci- 
sion.  In  a  fire-insurance  case,  the  same  word  might  have 
an  architectural  meaning.  In  a  criminal  case,  it  might 
mean  a  cloth  horse  used  in  laundries ;  and  in  a  military 
order  it  might  stand  for  the  word  cavalry.  If  an  officer 
had  received  an  order  to  send  200  horse,  and  he  were 
arraigned  for  disobedience,  it  would  be  an  insufficient 
excuse  were  he  to  plead,  that,  the  order  being  to  send  200 
horse,  he  did  not  know  how  to  send  them,  since  the  men 
were  not  ordered  at  the  same  time.  The  word  "  horse  "  is 
frequently  used  in  military  language  for  a  man  with  his 
horse.  Thus  the  word  "  soul  "  stands  frequently  in  statis- 
tical writings  for  individuals  of  the  human  species. 

The  general  character  of  the  text,  whether  it  has  ema- 
nated from  a  high  or  low  source,  and  was  drawn  up  with 


cise  meaning  of  synonymes.  Altogether,  etymology  is  one  of  the  means 
of  arriving  at  the  signification  of  a  word,  and  must  be  used  as  all  the 
others,  with  common  sense  and  in  good  faith.  Archbishop  Whately  says: 
"  It  is  worth  observing,  as  a  striking  instance  of  the  little  reliance  t<>  be 
placed  on  etymology  as  a  guide  to  the  meaning  of  a  word  (he  ought  to 
have  said,  absolute  meaning;  for  etymology  is,  in  cases,  no  mean  guide  to 
the  comparative  meaning  of  a  word),  that  Hypostasis,  Substantia,  and 
Understanding,  so  widely  different  in  their  sense,  correspond  in  their 
etymology."     Whately's  Logic,  Appendix,  ad  verbum  Person. 


90  HERMENEUTICS. 

care  or  in  haste,  with  a  knowledge  of  the  technical  terms 
or  not,  the  peculiar  character  of  the  author,  and  the  espe- 
cial connexion  in  which  we  find  a  doubtful  word,  must 
direct  us  in  fixing  upon  a  proper  meaning. 

IX.  The  usus  loquendi  may  relate  to  a  language  in 
general,  for  instance,  femme  sage  in  French,  which  never 
means  a  wise  woman  but  always  a  midwife  —  or  res  in 
Latin,  which  stands  often  for  deeds  —  or  deed  in  English, 
which  stands  often  for  a  certain  species  of  document.  Or 
the  usus  loquendi  may  relate  to  a  particular  period,  as 
imperator,  which,  at  the  time  of  the  Roman  republic,  meant 
something  different  from  what  it  signified  during  the  empire  ; 
or  the  Greek  marts  which  required9  a  different  meaning  with 
the  Christian  writers.  The  word  obtaining  means  now, 
frequently,  something  entirely  different  from  what  it 
formerly  did.  Or  it  may  relate  to  an  individual  author, 
thus  Dion.  Halicarnassus  wrote  on  the  idioms  of  Thucy- 
dides ;  or  to  a  certain  art  or  science,  as  we  have  seen 
above  ;  or  to  a  certain  society,  sect,  &c.  ;  or  to  a  peculiar 
class  in  society,  in  a  nation,  for  instance,  the  illiterate ;  or, 
finally,  to  a  part  of  a  country  (provincialisms). 

X.  The  chief  rules  in  ascertaining  the  meaning  of 
doubtful  words,  besides  the  general  one,  just  given,  that 
we  are  to  take  the  words  in  that  meaning  which  we  may 
faithfully  believe  their  utterer  attached  to  them,  (wmich 
word  faithfully,  however,  does  not  imply  our  being  carried 
away  by  personal  feelings,  violent  dislikes,  or  conceited 
self-considerations,)  are :  — 


9  Required.    So  in  the  former  edition  and  in  Dr.  Lieber's  corrected  text,  but  prob- 
ably a  misprint  or  a  slip  of  the  pen  for  acquired.'—  Ed. 


iii:kmi:m:i  tics.  91 

To  try  first  to  ascertain  the  meaning  —  from  other  pas- 
sages of  the  same  text,  in  which  the  ambiguous  word  occurs, 
so  used  thai  ii  Leaves  no  doubl  —  by  parallels. 

To  ascertain  it  from  other  sources  which  we  consider 
fully  competent  :  thus,  with  regard  to  dead  languages,  from 
contemporary  writers  in  the  same  language,  or  other  con- 
temporaries, who  have  chanced  to  explain  the  doubtful 
word,  a-  Cicero  explains  several  Greek  words:  with  respect 
to  living  languages,  from  works  or  persons  of  the  same 
nation,  community,  profession,  art,  &c,  to  which  the  doubt- 
ful word  may  relate,  after  these  persons  have  established 
their  character  for  competency  and  truth  ;  from  previous 
expounders,  of  weighty  authority,  who  are  known  to  have 
paid  much  attention  to  the  subject,  and  have  done  it  with 
patience,  learning,  shrewdness,  and  conscientiousness  :  and 
from  scholia,  glosses,  versions,  and  commentators.10 

To  this  rule  refers  the  old  maxim,  acknowledged  amonir 
others  by  Lord  Coke:  "  Contemporanea  expositio  esl 
fortissima  in  lege" — that  is,  as  in  all  other  cases,  cum 
grano  salis,  as  will  appear  more  clearly  from  the  sequel. 
We  have  in  this  particular  to  guard  ourselves  against  an 
inordinate  veneration  of  old  authors,  merely  because  they 
are  old,  or  against  a  too  implicit  reliance  upon  old  authors, 
simply  because  they  have  been  relied  upon  so  long. 
Science  advances,  and  it  would  be  a  matter  of  meat 
regret  if  successive  centuries  were  unable  to  supersede  by 
their  labors  some  works  of  previous  periods,  though  they 


111  rpon  ihis  entire  subject  there  i-  scarcely  a  higher  authority  or  a  more  satisfac- 
tory exposition  than  wiU  be  found  in  EncyclopSdie  unit  Bfethodologie  der  Philolog- 
ischen  Wissenschaften  von  August  Bbckh,  Leipzig,  1877,  — a  posthumous  work  ol  the 

great  classical  scholar.     See  especially  pp.  79-235,  OD  llcrnienculik  and  on  Krilik. — 

Ed. 


92  HEKMENEUTICS. 

have  justly  enjoyed,  and  for  a  long  time,  the  reputation  of 
authority.  See  especially  the  chapters  on  Precedents  and 
Authorities.11 

We  must  be  guided  by  the  degree  of  care  which  common 
sense  will  oblige  us  to  believe  to  have  been  bestowed  upon 
the  selection  of  words  and  their  arrangement.  It  would  be 
in  accordance  with  genuine  interpretation  to  take  the  same 
word  in  a  wider  or  more  restricted  sense,  or  in  an  entirely 
different  one,  if  we  meet  with  it  in  an  international  treaty, 
from  what  we  would  had  we  the  will  of  a  private  individual 
before  us. 

XI.  The  reader  will  find  in  this  section,  some  instances, 
elucidating  the  preceding  remarks. 

In  former  ages,  the  students  of  the  most  frequented 
European  universities  were  divided  into  various  societies, 
called  nations,  which  had  their  peculiar  privileges,  as  there 
are  to  this  day  four  "  nations  "  in  the  university  Of  Glasgow. 
Property  was  not  unfrequently  bequeathed  to  them  ;  the 
word  "  nation,"  therefore,  in  a  will  containing  such  bequest, 
was  to  be  taken  in  an  entirely  different  sense  from  what 
would  be  given  to  it  in  a  national  treaty.  Again,  the 
various  tribes  of  the  North  American  Indians  are  frequently 
called  nations,  and,  secondarily,  the  country  they  inhabit. 
In  this  peculiar  signification,  the  word  "nation"  is  often 
used  in  public  documents  of  the  United  States  relating  to 
transactions  with  the  Indians,  for  instance  to  their  ceding 
of  lands. 

In   the  commercial  treaties  of  the    Unite      States  with 


»  Chapters  VII.  and  VIII.  of  the  text,  post,  and  Additional  Xote  (N)  on  Precedent, 
and  the  Nature  of  Authority  in  the  Law.  —  Ed. 


HERMENEUTICS. 


93 


other  powers  the  expression  "American  goods  "  is  used.  To 
give  to  this  term  the  meaning  of  goods  coming  from  any 
part  of  the  continent  of  America,  or  it*  adjacent  islands, 
would  not  be  genuine  interpretation. 

The  Tariff  of  the  United  States  imposes  a  different  duty 
upon  manufactured  articles  of  iron  and  on  bar  iron.  A 
merchant  in  New  York  imported,  in  1832,  rolled  iron,  which 
the  collector  declared  to  be  bar  iron,  liable  to  the  heavier 
duty.  The  merchant  claimed  the  benefit  of  the  smaller 
duty,  the  imported  article  being,  according  to  his  opinion, 
manufactured  iron.  The  question  came  before  the  proper 
court,  in  September  of  the  same  year,  and  witnesses, 
acquainted  with  the  terms  of  the  iron  trade,  were  called  to 
state  whether  the  term  "manufactured  iron"  applied  to  rolled 
iron  or  not.  So,  in  another  case,  it  was  accessary  to  ascer- 
tain from  credible  persons,  conversant  with  the  subject, 
whether  the  term  "old  iron"  was  applicable  to  certain 
imported  iron  or  not.  Interesting,  with  regard  to  this 
subject,  is  likewise  a  case  which  attracted  much  attention, 
where  it  was  decided  by  Mr.  Justice  Story,  in  the  Circuit 
Court  of  the  United  States,  that  "  loaf  sugar,"  after  being 
crushed,  in  which  state  it  was  imported  into  the  United 
States,  was  not  "  loaf  sugar"  within  the  Tariff  Act  of  the 
United  States  of  181G.  See  United  States  v.  Breed,  1 
Sumner  R.  159.u 


'-  Although  the  revenue  laws,  tariffs,  etc.,  of  the  United  States  are  intended  only 
for  the  collection  of  duties,  and  not  for  the  punishment  of  crimes,  [see  United 
States  o.  Twenty-eighl  Packages,  Gilpin  806  .  yet  the  rule  of  their  interpretation  is 
almost  as  favorable  to  the  individual,  as  against  the  state,  as  that  in  relation  to 
criminal  statutes.  Duties  are  never  imposed  upon  citizens  by  doubtful  interpreta- 
tions. Adams  d.  Bancroft, 3  Sumn.  :5S4.  In  cases  of  serious  ambiguity  in  the  language 
of  a  revenue  act,  or  doubtful  classification  of  articles,  the  construction  is  to  be  in 
favor  of  the  importer,    rowers  v.  Barney,  5  Blatchf.  202.  —  Eu. 


94  HERMENEUTICS. 

The  constitution  of  Massachusetts  provides  that  votes 
shall  be  given  in  writing.  The  proper  officers,  some  years 
ago,  had  refused  a  printed  vote,  usually  called  a  ticket.  An 
action  was  consequently  brought  before  the  Supreme  Court 
of  that  state,  and  it  was  decided  that  writing  in  this  case 
included  printing.  See  Henshaw  v.  Foster,  9  Pick.  E.  318. 
This  can  only  be  founded  upon  the  principle  that  the  usus 
loquendi,  with  regard  to  the  word  "  writing,"  has  changed. 
There  are,  however,  many  who  consider  this  interpretation 
decidedly  what  we  have  called  an  extravagant  interpreta- 
tion.13 

A  will  made  in  the  state  of  New  York,  and  providing 
means  for  the  foundation  of  a  common  school,  must  be  so 
interpreted  that  it  means  a  school  according  to  the  standard 
of  those  which  are  called  common  schools  in  that  state,  and 
not  in  Connecticut,  Massachusetts,  France,  Prussia,  or  any 
other  country 

If  the  late  Mr.  Girard,  of  Philadelphia,  directs  by  his 
will,  that  at  least  two  millions  of  dollars  shall  be  used  for 
the  foundation  of  an  asylum  for  "poor  male  white  orphans," 
the  word  poor  is  to  be  interpreted  according  to  the  views 
of  the  community  of  the  time  in  which  he  lived ;  while  the 


13  But  the  Supreme  Court  of  Vermont  has  decided  in  the  same  way  with  that  of 
Massachusetts.  Temple  v.  Mead,  4  Vt.  541.  And  the  following  passage  from  a  recent 
treatise  on  Elections  seems  to  fully  vindicate  these  decisions  from  the  author's 
criticism:  "The  term  '  written '  is  held  to  include  what  is  printed,  — following  the 
definition  of  that  term  as  given  by  the  best  lexicographers,  viz.,  'to  express  by 
means  of  letters.'  No  doubt,  to  the  common  understanding  the  term  'written' 
conveys  the  idea  of  forming  letters  into  words  with  a  pen  or  pencil;  but  to  give  it 
this  meaning,  in  this  connection,  would  be  to  sacrifice  the  spirit  for  the  sake  of  the 
letter."    McCrary  on  the  American  Law  of  Elections,  §  412. 

Where  a  printed  ticket  has  been  changed  by  the  voter,  by  erasing  some  part  of  it, 
or  by  writing  on  the  face  of  it,  or  both,—  in  the  phrase  of  politics,  "scratching  the 
ticket,"  — it  has  been  held  that  the  writing  will  prevail  over  the  printed  part,  as  the 
higher  evidence  of  the  voter's  intention.  McCrary,  §§  408,  409;  The  People  v.  Sax- 
ton,  2-2  N.  Y.  309.  —Ed. 


BERMENE1  TICS.  95 

word  "white"  every  one  knows  is  used  to  indicate  the 
descendants  of  the  Caucasian  race,  whose  blood  has 
remained  unmixed  with  that  of  Negroes,  Indians,  or  thai 
of  any  other  "colored"  race.  The  provision  cannol  be 
invalidated  by  the  objection  that  no  really  white  people 
exist.  The  word  "  orphan  '  must  be  taken  in  the  sense  in 
which  it  is  understood  by  nearly  all  nations,  namely,  as 
meaning  a  fatherless  child.14 

In  a  similar  way  have  others  left  money  for  the  founda- 
tion of  schools  for  "colored"  people,  meaning  thereby 
negroes  and  mulattos.  In  some  parts  of  the  world,  the 
term  would  signify  people  of  mixed  blood  only,  for  instance, 
in  the  West  Indies  ;  while  a  court  in  New  England  would, 
perhaps,  be  obliged  to  include  negroes,  since  this  word, 
considered  harsh,  has  given  way,  in  a  degree,  to  that  of 
colored  people,  in  that  part  of  the  Union.  Again,  if  a 
testator  should  stipulate  that  a  certain  sum  should  be  paid 
for  the  best  chemical  treatise  on  colorless  blossoms,  it  would 
be  sufficient  to  prove  in  court  that  colorless  means  green." 


"  For  the  application  of  this  remark  see  Vidal  v.  Girard'S  Executors,  2  Howard 
(U.  S.),  193.  The  great  speech  of  Daniel  Webster  upon  the  Guard  will  is  m  vol.  6  of 
his  works  p.  175. 

«  Illustrations  of  this  kind  might  be  multiplied  almost  without  limit.  A  few  may 
be  added  t<>  those  in  the  text. 

Hugo  (Geschichte  fles  K.  R.  seit  Justinian)  says,  in  one  place,  of  Ranconnet,  that 
his  name  is  upon  no  title-page,  and  in  another  that  upon  the  title-pages  of  the  nooks 
of  others  he  is  mentioned  with  great  distinction. 

Kin  merkwnrdiges  Beispiel  von  einem  fur  uns  sehr  wichtigen  Manne,  dcr  auf 
keinem  Titel-Blatte  -tela,  and  nie  Vortrage  gehalten  hat.  i-t  Ranconnet    p.  i 

Ohter  seinem  Nahmen  i-t  Nichts  gedrnckt,  d.  h.,  bo  dass  er  als  Verfasser  Oder 
Herausgeber  genannt  ware;  aber  auf  dem  Titel-Blatte  der  Biicher  nnd  in  den 
Vorreden  anderer  i.-t  er  ganz  ausgezeicb.net  geruhmt  (p.  - 

There  is  no  inconsistency  between  the  two  statements  as  thus  made:  but  it  is 
evident  that  the  apparently  simple  and  clear  expression  of  a  name  standing  on  a 
title-page  means  two  different  things,  so  that  it  can  be  affirmed  in  one  place  and 
denied  in  another  of  the  same  man.  The  "land  of  promise"  is  a  very  familiar 
phrase,  with  a  tolerably  definite  meaning,  equivalent  to  the  "  promised  land."  But 
in  the  following  passage  from  Knight's  History  of  England  it  has  quite  a  different 
meaning:    "  There  was  a  wide  gulf  between  the  laud  of  promise  aud  the  laud  of 


96  HERMENEUTICS. 

Ill  September,  1837,  a  case  of  considerable  importance 
was  tried  in  England,  in  which  the  question  was,  whether  a 
steamship  conies  within  the  meaning  of  the  act  which  regu- 
lates the  London  pilotage  —  an  act  passed  when  there  were 
no  steam  vessels,  claiming  parliamentary  attention/ 


* 


*  My  legal  friends  I  trust  will  pardon  me,  if  I  quote  here  from  the 
papers  of  the  time,  in  lieu  of  better  reference.  The  case  came  before  Mr. 
Ballantine  in  the  shape  of  an  information  against  Capt.  J.  Anderson, 
master  of  the  North  Star  steam-ship,  who  was  charged  with  having,  on 
the  14th  of  May  last,  acted  as  a  pilot  on  board,  after  J.  H.  Bennett,  a  pilot 

reality."  Vol.  VIII.,  p.  62.  The  metaphor  here  would  be  meaningless  or  absurd  if 
the  promised  land  were  meant;  since  that,  of  course,  must  be  the  same  land  which  is 
to  be  enjoyed  in  reality.  Consequently,  we  must  interpret  the  term  to  mean  the 
land  in  which  the  promise  is  given,  or,  dropping  the  metaphor,  the  condition  of 
promise  as  contrasted  with  fruition.  What  kind  of  interpretation  shall  we  call  it 
that  gives  or  explains  this  meaning? 

The  extent  to  which  the  meaning  of  very  common  words  may  be  affected  by  the 
matter  to  which  they  are  applied  maybe  seen  by  an  extract  from  a  well-known 
work. 

"  Happening  to  prove  fatter  or  more  lean  than  had  been  reckoned,  the  matter  as 
put  into  metal  overran  or  fell  short." 

No  one  but  a  practical  printer  could  make  sense  of  these  words,  I  think,  apart 
from  the  context,  which  would  inform  him  of  the  general  subject  of  which  they  treat, 
in  Wallace's  Reporters,  p.  59. 

"  The  invitation-cards  which  are  issued  on  such  occasions  [a  wedding  feast  given 
by  the  bridal  pair,  four  days  after  the  marriage]  are  stereotyped,  and  read  very  much 
as  follows:  "  —  Gray's  China. 

Does  this  mean  that  they  are  so  executed,  or  that  the  form  is  an  invariable  one? 

In  writing  the  last  line,  I  was  about  to  conclude  the  sentence,  "  or  that  the  form  is 
set  "  when  it  occurred  to  me  that  this  very  expression  is  another  ambiguous  one,  which 
might  refer,  according  to  the  context,  either  to  the  mechanical  execution  or  to  the 
phraseology.  So,  we  lind  illustrations  of  the  need  of  interpretation  from  the  context 
in  almost  every  thing  said  or  written,  when  our  attention  is  once  directed  to  the 
search. 

The  word  "  easterly,"  when  applied  to  a  current  of  water,  means  flowing  to  the 
east;  when  applied  to  a  current  of  air  (a  wind),  means  flowing/row  the  east.  So, 
also,  "westerly,"  and  all  the  other  adjectives  of  the  class. 

"  The  general  easterly  drift  of  that  region  of  the  Atlantic,  which  is  kept  up  by  the 
prevalence  of  westerly  winds."  Dr.  W.  B.  Carpenter,  in  Encyclopedia  Britannica 
(9th  ed.),  vol.  III.,  p.  20,  art.  "Atlantic." 

Any  number  of  examples  might  be  added,  if  it  were  worth  the  while,  of  the 
various  meanings  which  the  same  word  has  acquired  in  different  languages,  or  even 
in  the  same  language.    It  was  long  ago  remarked  that  — 

"  Old  priest  is  but  new  presbyter,  writ  large,"  and  every  student  of  his  mother- 
tongue  knows  that  to  blame  and  to  blaspheme  are  the  same  word. 

Gift,  in  German,  is  undoubtedly  the  same  word  etymologically  as  in  English,  yet 
it  means  a  poison.  —  Ed. 


HERMENE0T1CS.  97 

If  the  testament  of  a  Spaniard,  or  a  law  in  Spain  makes 

use  of  the  word  "  Christian,"  there  can  be  no  doubt  that  the 
judge  is  bound  to  take  the  term  as  synonymous  with  a 
Christian  who  professes  the  Roman  Catholic  religion  ;  for 
the  word  cristiano  is  never  taken  in  that  couutry  in  any 
other  sense.  Suppose,  however,  the  word  Christian  is  used 
in  the  United  States,  it  would  be  against  the  rules  of 
interpretation  and  good  faith  to  allow  one  sect  to  exclude 
another,  on  the  ground,  that  the  latter  does  not  follow 
orthodox  doctrines.  Sects,  in  their  zeal,  may  deprive  each 
other  of  the  name  derived  from  the  common  founder  of 
our  religion,  professed  by  all,  and  make  specific  points, 
e.g.  a  belief  in  the  Trinity,  a  test  of  the  applicability  of  the 
name  of  a  Christian,  but  the  interpreter  would  have;  no 
right  to  exclude  Unitarians  as  long  as  they  call  themselves 
Christians,  profess  the  bible,  are  enumerated  by  every 
statistical  and  geographical  writer  among  the  Christian 
sects,  and   are   considered    as   Christians  by  every  one   in 


duly  licensed  by  the  Trinity-house,  had  offered  to  take  charge  of  the 
steamer;  whereby  the  defendant  had  forfeited  the  sura  of  £15  16s 
being  double  the  amount  of  the  sum  which  would  have  been  demandable 
for  the  pilotage  of  the  ship.  —  Mr.  Ballantine  referred  to  the  Act,  and  said 
he  was  of  opinion  that  steamers  ought  to  be  exempt  by  the  common  sense 
of  things.  Pilots  had  to  receive  a  certain  education  before  they  were 
licensed;  but,  however  expert  they  might  be  in  conducting  sailing-i 
it  might  require  a  different  degree  of  skill  to  conduct  a  steam-vessel.  A 
pilot  superseded  a  master  in  the  command  of  a  ship,  and  the  master  of  a 
steamer,  it  must  be  supposed,  was  appointed  because  he  understood  the 
nature  of  the  engines  and  machinery.  He  did  not  understand  how  the 
new  science  was  to  be  engrafted  on  the  ancient  custom.  However  expert 
a  pilot  might  be  as  a  seaman,  he  might  be  a  very  bad  engineer.  The  com- 
plaint was  then  proved,  and  as  the  Act  left  the  magistrate  no  discretion, 
the  captain  was  lined  in  the  penalty  above  stated  and  costs. 


98  HERMENEUTICS. 

common  life,  whose  judgment  is  not  influenced  by  sectarian 
excitement.  Theology  has  not  to  decide  the  point,  if  we 
have  to  interpret  the  word  for  purposes  not  lying  within 
the  province  of  divinity. 

I  do  not  know  on  what  particular  ground  the  judges  of 
England  decided  the  suit  of  the  Attorney  General  of 
England  versus  Shore,  in  July,  1834,  according  to  which 
the  management  of  an  estate  left  by  a  Lady  Hewley,  in 
trust,  to  support  "  godly  preachers  of  Christ's  Holy 
Gospel,"  was  taken  from  Unitarians,  as  not  coming  within 
the  meaning  of  the  bequest,  but  if  the  decision  was  made 
merely  on  the  ground  that  they  do  not  believe  in  the 
Trinity,  in  the  same  manner  as  most  other  sects  do,  or 
as  the  dissenters  in  England  do,  Lady  Hewley  having  been 
a  dissenter,  it  seems  a  surprising  decision.*  Lady  Hewley 
lived  at  the  time  of  Charles  II 


*  Substance  of  the  speech  of  Charles  Purton  Cooper,  in  the  suit  Ox  the 
Attorney  General  v.  Shore,  instituted  in  the  High  Court  of  Chancery, 
respecting  Lady  Hewley's  Foundations,  Wednesday,  July  2,  1834,  2d 
edit.  London,  1834.  In  1842  the  house  of  lords  gave  a  final  decision,  con- 
firming the  decision  of  the  Vice-Chancellor  and  the  Lord  Chancellor.  Mr. 
Justice  Erskine  observed  that  those  who  denied  the  Trinity  were  in  Lady 
Hewley's  time  considered  blasphemers,  and  therefore  they  could  not  be 
intended  by  the  term  "godly  preachers."  Mr.  Hallam,  the  historian, 
wrote  to  the  author,  concerning;  what  the  latter  had  said  of  the  case  in 
the  former  edition  of  this  work  that  he  was  mistaken,  and  that  no  one  in 
England  doubted  the  correctness  of  the  court,  the  house  of  lords  not 
having  then  decided.  I  cannot  help  adding  that  if  the  reason  given  by 
Justice  Erskine  were  tenable  in  its  whole  breadth,  as  he  states  it,  it  would 
lead  to  surprising  ends.  Suppose  a  will  made  300  years  ago  provides  for 
a  distribution  of  money  among  those  who  suffer  from  want,  is  the  standard 
of  comfort  of  that  time  to  be  taken  without  any  reference  to  the  changed 
standard  of  comfort.  Can  no  tea  be  given  to  those  "in  want"?  It  is 
now  given  to  paupers. 


HEEMENEDTICS.  'J!1 

I  will  give  one  more  instance,  which  seems  to  mc 
strikingly  to  illustrate  some  remarks  which  have  been 
made    above.      Several    acts    of*    parliament    regulate   the 

lineal  measure  of  Gn-at  Britain;  the  lust  of  them,  5 
George  1\\,  e.  74,  settles  the  length  of  a  foot,  in  such  a 
manner  as  to  do  away  with  all  doubt,  by  enacting  the 
preeise  proportion  which  a  yard  is  to  hear  to  a  pendulum 
vibrating  seconds  in  the  latitude  of  London.  It  is  36 
inches  to  39.1393.  Nothing  can  be  clearer.  If  an  act  of 
parliament,  therefore,  uses  the  terms  yard,  rod,  furlon^ 
or  mile,  it  would  seem  that  no  doubt  as  to  their  exact 
meaning  can  any  longer  exist.  Yet  the  reform  act  declares 
that  the  residence  of  freemen,  who  have  a  right  to  vote  at 
a  place  called  Maldon,  should  be  restricted  to  seven  miles 
from  the  town  hall.  The  important  question  arose:  Are 
these  seven  miles  to  be  measured  by  the  road,  or  in  a 
straight  line  over  hedge  and  ditch  i  If  the  latter,  fifty  or 
sixty  more  voters  belong  to  Maldon,  and  as  matters  stood 
during  the  election  of  1837,  a  candidate  would  have 
obtained  a  seat  in  parliament,  directly  opposed  to  the  one 
who  must  have  been  returned,  if  the  other  interpretation 
had  beer  adopted,* 

XII.  If  technical  terms,  belonging  distinctly  to  the 
terminology  of  an  art  or  science,  are  used  as  such,  the 
same  good  faith  demands  that  they  must  not  be  taken  in 
their  common  but  in  their  technical  sense,  as  has  been 
mentioned  already. 

Corresponding  to  this  principle  is  another,  that  tropes  be 
taken  as  tropes,  and  direct  expressions  as  direct. 


British  Papers  of  October,  1837. 


100  HERMENEUTICS. 

This  rule,  a  deviation  from  which  has  caused  great 
calamities,  is  generally  of  easy  application  in  politics  or 
law,  yet  not  always.  A  clergyman  who  leaves  a  portion 
•of  his  property  "  for  the  greatest  improvement  of  his 
flock,"  will  be  understood  to  mean  by  flock  the  aggregate 
of  his  parishioners.  A  minister,  however,  convinced  that 
no  greater  benefit  could  be  bestowed  upon  his  impoverished 
congregation  than  the  improvement  of  their  sheep,  by 
importing  a  merino  ram,  had  with  great  expense  and 
infinite  trouble,  succeeded  in  obtaining  one.  For  the  last 
■fifteen  years  he  had  bestowed  the  greatest  care  upon  the 
improvement  of  his  sheep  to  set  a  good  example,  and  to 
assist  his  parishioners  in  improving  theirs.  When  he  died 
it  was  not  easy  for  his  executors,  whom  he  directed  by  his 
will  to  use  a  considerable  proportion  of  his  property  for 
the  "  greatest  improvement  of  his  flock,"  to  decide 
whether  the  testator  had  used  the  word  in  a  tropical 
sense  or  not. 

The  previously  mentioned  instance  of  the  New  England 
farmer  leaving  a  legacy  for  the  benefit  "  of  the  poor  of  the 
household  of  faith,"  is  likewise  in  point. 

XIII.  The  special,  particular  and  inferior,  cannot  defeat, 
or  intentionally  militate  with  the  general  and  superior.  If, 
therefore,  we  may  attach  two  or  more  different  meanings 
to  a  sentence,  that  is  the  true  one  which  agrees  most  with 
the  general  and  declared  object  of  the  text. 

The  late  Mr.  Girard  specifies  very  minutely  how  his 
orphan  as}dum  is  to  be  built ;  but  the  architects  have  since 
declared  that  some  of  his  directions  cannot  possibly  be 
executed  without  great  injury  to  the  building,  or  danger  to 


KERMENEUTK  3.  101 

its  inmates.  It  would  be  absurd  to  suppose  thai  the 
testator  was  desirous  of  defeating  the  general  object,  i.e. 
the  erection  of  an  orphan  asylum,  by  a  specific  direction, 
namely,  that  of  architectural  details,  and  consequently  this 
portion  of  the  will  must  be  set  aside,  as  of  n<>  effect. 
&  When  the  particular,  however,  thus  evidently  defeats  the 
general,  whether  in  part  or  entirely,  we  have  to  resort  to 
construction,  in  order  to  obviate  the  difficulty. 

By  way  of  exception,  the  specific  may  be  contrary  to  the 
general,  but  it  must  not  be  forgotten,  that  exceptions  are 
made  on  a  ground  still  more  general  than  the  general  object 
of  the  text;  the  rule,  therefore,  just  given,  is  perfectly 
correct. 

The  inferior  officer  has  to  obey  the  superior,  but  if  the 
former  is  convinced  that  the  latter  is  committing  an  act  of 
L  treason,  for  instance,  by  maneeuvering  so  that  the  troops 
or  vessel  must  be  taken  or  defeated,  or  by  surrendering 
treacherously  a  fortress,  or  striking  the  flag  without  cause, 
or  avoiding  fighting  when  necessary,  the  inferior  officer  has 
the  right  to  resist;  or,  in  case  of  urgency,  to  kill  him, 
when  there  is  no  other  remedy  in  the  midst  of  battle. 
"Why?  Because  general  safety  is  a  law  superior  even  to 
military  or  naval  discipline. 

XIV.  Since  our  object  is  to  discover  the  sense  of  the 
words  before  us,  we  must  endeavor  to  arrive  at  it  as  much 
as  possible  from  the  words  themselves,  and  bring  to  our 
assistance  extraneous  principles,  rules,  or  any  other  aid,  in 
that  measure  and  degree  only,  according  to  which  interpre- 
tation becomes  difficult  or  impossible  (interpretation  pre- 
cedes construction);  otherwise  interpretation  is  liable  to 
become   predestined.     Words   have   been    used   to   expr<  3S 


102  HERMENEUTICS. 

the  sense,  and  through  the  words,  if  possible,  we  have  to 
arrive  at  it. 

Ernesti  most  solemnly  warns  against  the  belief  in  a  per- 
petual and  direct  divine  assistance  in  understanding  the 
bible,  without  an  unremitted  zealous  endeavor  to  arrive  at 
the  sense  of  the  words,  by  the  rules  of  sound  interpretation. 
He  calls  it  the  abuse  of  reason,  for  by  so  doing  we  carry 
our  opinion  into  the  bible,  and  do  not  keep  within  the  limits 
of  the  word,  i.e.  are  unwilling  to  learn  and  receive  the 
true  meaning. 

It  is  similar  with  those  who  have  their  own  notions  of 
public  welfare,  and  carry  them  into  a  constitution,  instead 
of  faithfully  interpreting  the  instrument.  There  are  many 
individuals  with  whom  arguing  upon  public  measures,  or 
subjects  of  public  interest,  is  out  of  the  question ;  for 
speak  to  them  about  law,  constitution,  custom,  interpreta- 
tion, rules,  or  whatever  you  like,  their  invariable  answer 
will  be,  what  do  I  care  for  your  letters  !  the  people's  wel- 
fare and  plain  common  sense  (by  which,  in  this  case,  their 
own  view  is  meant)  are  the  only  rules.  They  expect,  by 
way  of  intuition,  what  the  others  expect  by  way  of  inspir- 
ation. 

The  more  we  apply  to  general  principles,  or  opinions  not 
expressed  in  the  words,  the  less  sure  we  can  be,  whether 
we  understand  the  individual  meaning  of  the  text  or  not. 
The  appeal  to  the  motives16  of  the  utterers  is,  in  most 
cases,  doubtful,  in  many,  dangerous  ;  because  it  lies  in  the 
nature  of  things  that  it  must  be  difficult,  or  impossible,  to 
arrive  at  them  otherwise  than  from  the  words  themselves, 
except  when  a  general  declaration  has  taken  place. 


i«    See  Note  14, part,  p.  156- 


HERMENEUTIC8.  103 

XV.  Having  said  thus  much,  it  becomes  necessary  to 
make  a  remark,  which  perhaps  more  properly  belongs  to 
the  subject  of  construction,  but  which  may  have  a  place 
here  to  avoid  apprehension.  We  have  seen  thai  interpre- 
tation means  nothing  more  than  finding  out  the  true  sense 
and  meaning.  But  it  is  nol  said  that  interpretation  is  all 
that  shall  guide  us,  and  although  I  believe  the  remark-  in 
the  next  preceding  section  to  be  correct,  >till  there  are 
considerations  which  ought  to  induce  us  to  abandon  inter- 
pretation, or  in  other  words  to  sacrifice  the  direct  meaning 
of  a  text  to  considerations  still  weightier;  especially  not  to 
slaughter  justice,  the  sovereign  object  of  laws,  for  the  law 
itself,  the  means  of  obtaining  it.  In  this  respect,  interpre- 
tation is  much  like  political  economy,  a  highly  useful 
science,  yet,  withal,  its  object  is  to  ascertain  the  laws  which 
regulate  the  physical  existence  of  society,  and  there  are 
subjects  17  superior  to  this.  A  war  may  not  be  advisable  on 
simple  grounds  of  political  economy  as  to  its  nearest  effects, 
and  yet  be  urgently  called  for  by  all  that  is  sacred  to  a 
nation,  to  mankind.  This  consideration  is  frequently  for- 
gotten by  political  economists,  who,  at  times,  write  as  if 
political  economy  had  actually  supplanted  the  science  of 
natural  law  and  politics.18 

The   followinof  case  seems  to  me  so  interesting   in    its 


17  Subjects.  In  this  case,  as  in  that  on  p.  00,  ante,  I  have  felt  bound  to  follow 
Dr.  Lieber'.s  own  text,  though  there  can  be  no  doubt  that  be  intended  to  write 
"objects."  — Ed. 

18  It  is  always  dangerous,  and  experience  has  often  shown  it  to  he  ruinous,  to 
regulate  our  <■. >n<l net  by  arbitrary  maxims,  vague  conceptions,  or  metaphorical 
expressions;  and  the  higher  our  sphere  of  thought,  or  of  action,  tin-  greater  this 
evil  becomes.  Dr.  Lieber,  De  I'Idie  de  1"  Raa  Latine  >t  </.-  $a  veritable  valeur  en 
Droit  Internationale,  an  essay  published  in  the  /.'•"■  dt  Droit  Internationale  <t  <ir 
Legislation  CiwipanV,  Tom.  III.,  1871,  pp.  158-463.  This  essay  i-  a  vigorous  protest 
against  the  exaggerated  importance  attached  lately  t<>  tin-  conception  ol  ra 
determining  element  in  history. —  ED. 


104  HERMENEUTICS. 

kind,  that  I  feel  warranted  in  stating  it.  When  Lord 
Bentinck  was  Governor  General  of  India,  he  abolished  flog- 
ging in  the  native  army  —  may  his  name  be  honored!  — 
not  having  authority  to  do  the  same  in  the  British  army  in 
the  East.  If  a  sepoy  professes  the  Christian  religion,  he 
thereby  becomes  subject  to  the  British  military  laws 
proper,  evidently  to  raise  him.  But  this  case  happened, 
which  was  thus  stated  in  a  Madras  paper. 

"A  few  months  ago  the  following  case  occurred  in  the 
Bengal  army:  A  Christian  sepoy  deserted  from  his  regi- 
ment, returned  shortly  afterwards,  was  tried  by  a  court- 
martial,  and  sentenced  to  be  corporally  punished.  The 
commanding  officer  thought  himself  prohibited  from  con- 
firming the  sentence  by  Lord  W.  Bentinck' s  order  abolish- 
ing corporal  punishment  in  the  native  army.  He  referred 
the  subject,  however,  for  the  opinion  of  the  Judge  Advo- 
cate General,  who  gave  it  as  his  opinion  that  the  sentence 
was  correct  and  might  be  carried  into  effect,  as  the  General 
Order  of  24th  February,  1835,  does  not  extend  to  Chris- 
tian drummers  or  musicians  (to  which  proscribed  trade 
the  unfortunate  individual  happened  to  belong),  and 
only  affects  native  soldiers,  not  professing  the  Christian 
religion." 

Below,  the  reader  will  find  the  order  of  Lord  Bentinck, 
and  the  interpretation  of  the  Judge  Advocate   General.* 


*  "Fort  William,  February  24,  1835. 
"The  Governor  General  of  India  in  Council  is  pleased  to  direct,  that 
the  practice  of  punishing  soldiers  of  the  native  army  by  the  cat-o'nine 
tails  or  rattan,  be  discontinued  at  all  the  presidencies,  and  that  it  shall 
henceforth  be  competent  to  any  regimental  detachment,  or  brigade  court- 
martial,  to  sentence  a  soldier  of  the  native  army  to  dismissal  from  the 


HERMKNEUTICS.  105 

Now,  even  waiving  the  important  principle  of  sound  con- 
struction, that  in  cases  of  doubt,  that  which  is  most  lenient 
must  be  adopted,  (see  further  below,)  and  it  was  surely 
no  stretch  of  the  subject  to  consider  it  a  matter  of  doubt, 
the  Judge  Advocate  General  was  wrong,  because  to  be 
subject  to  English  laws  proper,  was  meant  to  be  a  benefit, 
and  not  to  lead  to  the  monstrosity  that  the  profession  of 
the  Christian  religion  should  entitle  the  sepoy  to  tl  ree  hun- 
dred lashes,  and  defeat  the  other  privilege  which  his 
darker  color  conferred  upon  him. 

Another  interesting  case  in  point  is  suggested  by  the 
trial  of  Sir  William  Parkyns  for  high  treason  in  1G95, 
before  Lord  C.  J.  Holt,  Lord  C.  J.  Treby,  and  Mr.  Justice 
Rokeby.  He  prayed  to  be  allowed  counsel,  but  was 
refused,  because  the  Statute  7  Wm.  III.  eh.  3,  allowing 
counsel  to  persons  indicted   for  treason,  did   not  go  into 


service,  for  any  offence  for  which  such  soldier  might  now  be  punished  by 
flogging,  provided  such  sentence  of  dismissal  shall  not  be  carried  into 
effect,  unless  confirmed  by  the  general  or  other  officer  commanding  the 
division." 

The  Judge  Advocate's  letter  was  as  follows :  — 

"  Sir,  —  I  have  the  honor  to  return  the  proceedings  of  an  European 
court-martial,  held  in  the  lGth  Native  Infantry  upon  sepoy  and  musician 
John  Dooming,  received  with  your  letter.  I  conceive  that  the  prisoner 
Dooming  was  correctly  sentenced  to  corporal  punishment,  and  that  Lieut. 
Colonel  Tulloch  might  have  carried  the  same  into  effect  without  any 
reference  to  you  —  the  award  not  exceeding  300  lashes.  The  general 
order  of  24th  February,  1835,  does  not  extend  to  Christian  drummers  or 
musicians,  who  are  governed  by  the  rules  laid  down  in  the  Articles  of 
War  for  the  European  troops.  It  only  affects  native  soldiers  not  profess- 
ing the  Christian  religion. 

"  G.  Young,  Judge  Advocate  General. 

"16th  April,  1836." 


106  HERMENEUTICS. 

effect,  till  the  next  day  after  that  on  which  he  was  tried. 
It  was  in  vain  that  the  prisoner  quoted  a  part  of  the 
preamble,  which  said  that  such  an  allowance  was  just  and 
reasonable.  The  reply  of  Lord  C.  J.  Holt  was,  that  he 
must  administer  the  law  as  he  found  it,  and  could  not 
anticipate  the  operation  of  an  act  of  parliament  by  even 
a  single  day.  Whatever  may  be  thought  of  the  correct- 
ness of  Lord  Holt's  decision  in  point' of  law,  no  doubt 
can  be  entertained,  that  humanity  required  him  to  post- 
pone the  trial  for  one  day,  and  thus  give  the  prisoner 
the  benefit  of  the  act.  Sir  William  Parkyns  was  con- 
victed and  executed.  See  his  case  reported  at  length  in 
the  thirteenth  volume  of  the  State  Trials,  Howell's  ed. 

XVI.  That  which  is  probable,  is  preferable  to  the  less 
probable ;  the  fair,  to  the  unfair ;  the  customary,  to  the 
unusual ;  the  easy,  to  the  difficult ;  the  intelligible,  to  the 
unintelligible. 

We  have  to  follow  the  special  rules  of  interpretation 
which  have  been  given  by  proper  authority. 

Thus  the  Austrian  code  declares  that  the  German  is 
the  original  text,  and  shall  be  considered  and  referred  to 
as  such,  in  all  interpretations  and  constructions  of  its 
translations  into  the  several  idioms  spoken  in  the  Austrian 
dominions. 

We  endeavor  to  find  assistance  in  that  which  is  near, 
before  we  proceed  to  that  which  is  less  so. 

If  we  do  not  understand  the  word,19  we  try  whether  its 


19  It  is  not  always  necessary  or  desirable  to  begin  interpretation  with  the  meaning 
of  each  separate  word.  An  entire  phrase  often  has  a  definite  and  well-settled 
meaning,  quite  independent  of  the  usual  meanings  of  its  component  words.  In 
such  ca;es  it  would  confuse,  rather  than  explain,  to  attempt  analyzing  the  sense 


HKKMKNKITICS.  1(|7 

connection  in  a  sentence  will  shed  lighl  upon  it  ;  if  we 
do  not  succeed,  we  endeavor  to  derive  assistance  from 
the  period;  if  this  be  unavailing,  we  examine  the  whole 
instrument  or  work ;  if  thai  leads  us  to  uo  more  satisfac- 
tory result,  we  examine  other  writings,  &c.,  of  the  same 
author  or  authority  ;  if  thai  doc-,  not  suffice,  we  resorl  to 
contemporaneous  writers,  or  declarations,  or  laws  similar 
to  that  which  forms  our  text. 

What  we  have  said  before  includes  the  rule,  that  we  are 
by  no  means  bound  to  take  an  ambiguous  word  in  that 
meaning,  in  which  it  may  occur  in  another  passage  of  the 
same  text;  for  words,  as  is  well  known,  have  different 
meanings  in  different  contexts.20 


into  ;is  many  parts  as  there  are  words  used  to  utter  it.  The  phrase  or  sentence  is 
in  such  cases,  itself  a  unit,  — the  equivalent  of  a  single  word,  — as  may  often  be 
clearly  seen  by  translating  into  a  foreign  language,  or  even  finding  a  synonyme  in 
the  same. 

For  example:  the  phrase  "to  keep  house"  has  a  meaning  quite  different  from  any 
assigned  to  "keep  "  as  a  verb,  and  independent  of  any  distinction  bel «  een  I  he  very 
unlike  senses  of  "house."  And  the  phrase  has  changed  its  meaning,  in  the  course 
of  years,  without  any  corresponding  change  of  its  parts.  When  used  >>f  a  bankrupt; 
"beginning  to  keep  his  house"  mean-  something  entirely  different  from  the  same 
phrase"  used  of  a  new-married  couple.  A.mos*  Systematic  View  of  the  Science  of 
Jurisprudence,  quoting  tin?  Bankruptcy  Acts,  p.  209.—  ED. 

-"  It  has  recently  been  laid  down  that  "  every  word  which  has  more  than  one  mean- 
ing has  a  primary  meaning;  and  if  it  has  a  primary  meaning,  yon  want  a  context  t" 
find  another."  Per  Jessel,  M.  K.,  in  Pigg  u.  Clarke,  1..  R.3  Ch.  Div.672;  Is  Moak's  Kng. 
Rep.  754.  If  this  be  correct,  it  must  follow  that  where  the  context  does  not  supply 
another,  the^vord  must  always  be  presumed  to  be  used  in  it-  primary,  /.<■.,  in  a 
single  meaning.  This  would  contradict  all  that  has  been  said  of  the  changes  of 
meaning  in  time,  of  the  difference  made  by  place  or  circumstances.  Besides,  in 
what  sense  is  the  word  "primary  "  used  here?  Certainly  not  for  the  etymological, or 
original  meaning.  No  one  would  ('online  the  word  "  murder,"  in  an  indictment,  to  a 
case  of  secret  killing.  The  word  in  question,  in  this  very  case,  furnishes  a  good 
example  of  the  diilieulty  of  determining  the  "primitive"  meaning.  It  is  "family," 
and  the  M.  K.  says:  — 

"  What,  then,  is  the  primitive  meaning  of  "family?"  It  is  "children;"  that  is 
clear,  upon  the  authorities  winch  have  been  cited;  and,  independently  of  them,  I 
should  have  come  to  the  same  conclusion." 

The  authority  referred  to  is  Barnes  v.  Patch,  8  \  es.  (504.  But  one  of  the  counsel  in 
the  case  cited  four  other  authorities  (Cruwys  v.  Coleman,  9  Ves.  319;  Gregory  v. 
Smith.  '.)  Hare,  7ns ;  Williams  v.  Williams,  1  Sim.  (N.  S.)  S58 ;  Snow  v.  Teed.  I..  B.  9 
Eq.  622)  to  show  that  grandchildren  also,  and  all  lineal  descendants,  were  included 
in  the  term  "  family;"  and  another  counsel  made  U  include  daughters -in -law  (citing 


108  HERMENEUTICS. 

XVII.  In  recapitulating  the  elementary  principles  of 
interpretation,  we  shall  find  the  following :  — 

1.  A  sentence,  or  form  of  words,  can  have  but  one  true 
meaning. 


In  re  Terry's  Will,  19  Beav.  580).  It  is  difficult  to  see  in  what  sense  any  one  of  these 
meanings  can  be  called  "  primitive,"  rather  than  another.  Certainly,  if  the  order  in 
time  is  to  be  taken  into  account,  the  most  comprehensive,  rather  than  the  least  so, 
should  be  so  considered.  "Familia,  in  classical  Latinity,  means  always  a  man's 
slaves.  Generally,  in  the  language  of  ancient  Roman  law,  it  includes  all  persons 
under  his  potestas ;  and  the  testator's  material  property,  or  substance,  is  understood 
to  pass  as  an  adjunct  or  appendage  of  his  household."  Maine's  Ancient  Law,  p.  201. 
In  connection  with  the  last  fact.it  is  curious  that  the  only  meaning  given  in  Cowell's 
Interpreter,  as  peculiar  to  English  law,  is  that  of  "a  plough-land,  containing  as 
much  as  one  plough  and  oxen  can  till  in  one  year,"  while  in  Jacob's  Law  Diction- 
ary (folio,  1762)  the  word  is  thus  defined :  Familia,  signifies  all  the  servants  belonging 
to  a  particular  master;  but,  in  another  sense,  it  is  taken  for  a  portion  of  land  suffi- 
cient to  maintain  one  family,  etc.  See  also  Blount's  Nomolexicon,  to  same  effect. 
For  an  entirely  different  meaning,  again,  we  have  only  to  refer  to  the  Digest,  whare 
we  read:  "  Feminarum  liberos  in  familia  earum  non  esse,  palam  est;  quia  qui  nas- 
cuntur  patris,  non  matris  familiam  sequuntur."    Gains,  L.  19(5,  D.  de  V.  S.  (50,  16). 

An  example  of  the  same  kind,  in  which,  as  our  author  says,  "  there  are  considera- 
tions which  ought  to  induce  us  to  abandon  interpretation,  or,  in  other  words,  to 
sacrifice  the  direct  meaning  of  a  text  to  considerations  still  weightier,"  occurs  in  the 
newspapers  as  these  sheets  are  prepared  for  the  press ;  and  it  is  the  better  worth 
quoting,  because  it  illustrates  the  principle  from  the  ordinary  business  of  the  market- 
place, in  which  every  one  may  see  its  effect.  The  following  quotation  is  from  the 
commercial  report  of  the  Des  Moines  Register,  July  30,  187S: — 

"One  of  the  rules  governing  the  inspection  of  grain  in  the  city  of  Chicago  reads: 
'In  case  of  mixture  of  spring  and  winter  wheat,  it  will  be  called  spring  wheat,  and 
graded  according  to  the  quality  thereof.'  This  rule  was  passed  to  prevent  the 
country  shippers  mixing  spring  grain  with  winter,  the  usual  difference  in  the  price 
of  the  two  being  from  six  to  twelve  cents  per  bushel  in  favor  of  winter.  But  on 
Saturday  last  spring  wheat  was  worth  just  ten  cents  per  bushel  more  than  winter 
wheat  for  spot  delivery  at  Chicago,  simply  because  the  market  for  spring  is  prac- 
tically cornered.  On  Saturday  morning  a  large  amount  of  wheat  was  received  in 
that  market,  and  it  was  noticed  that  a  great  number  of  the  cars  contained  a  few 
bushels  of  spring  wheat  carelessly  mixed  in  with  the  top  layer  of  winter,  so  that 
when  the  inspectors  were  called  upon  to  grade  the  same,  they  were  obliged  to  grade 
it  spring  wheat,  —  absolutely  reduce  its  quality,  —  but  at  the  same  time  add  about  $40 
to  the  value  of  each  car-load!  There  was  considerable  dissatisfaction  expressed, 
and,  under  any  other  circumstances,  the  shippers  would  not  have  been  so  particular 
about  the  rule  being  carried  out  so  closely ;  but  they  found  they  had  a  good  thing  on 
the  city  chaps,  and  certainly  made  the  most  of  it.  Where  the  wheat  was  No.  2,  of 
course  it  could  be  utilized  by  the  shorts  to  fill  their  contracts,  and  in  all  probability 
receipts  therefor  would  be  a  legal  tender  on  No.  2  spring  wheat  contracts,  for  the 
reason  that  equity  admits  of  filling  a  contract  with  a  better  article  than  the  contract 
calls  for." 

One  of  the  best  and  most  general  rules  for  finding  out  the  intention  of  a  person 
who  uses  a  dubious  expression  is  this:  that  where  one  signification  of  the  word 
induces  an  injustice  or  absurdity,  another  signification  is  to  be  taken.  And  this  is 
the  rule,  even  where  the  unjust  or  absurd  signification  is  the  primary  and  proper  one. 
Blackstone,  Law  Tracts,  vol.  I.,  p.  24.  — Ed. 


HERMENEUTICS.  109 

2.  There  can  be  no  sound  interpretation  without  good 
faith  and  common  sense. 

3.  Words  are,  therefore,  to  be  taken  as  the  utterer 
probably  meant  them  to  be  taken.  In  doubtful  cases, 
therefore,  we  lake  the  customary  signification,  rather  than 
the  grammatical  or  classical:  the  technical  rather  than  the 
etymological  —  verba  artis  ex  arte;  tropes  as  tropes.  In 
general,  the  words  are  taken  in  that  meaning  which  agrees 
most  with  the  character  of  both  the  text  and  the  utterer. 

4.  The  particular  and  inferior  cannot  defeat  the  general 
and  superior. 

5.  The  exception  is  founded  upon  the  superior. 

6.  That  which  is  probable,  fair,  and  customary,  is  prefer- 
able to  the  improbable,  unfair  and  unusual. 

7.  We  follow  special  rules  given  by  proper  authority. 

8.  We  endeavor  to  derive  assistance  from  that  which  is 
more  near,  before  proceeding  to  that  which  is  less  so. 

9.  Interpretation  is  not  the  object,  but  a  means ;  hence 
superior  considerations  may  exist.21 

This  leads  to  construction. 


51  See  Additional  Note  (I),  on  the  Value  of  Formal  Rules  of  Interpretation.  — Ed. 


CHAPTER    V. 

Construction  is  unavoidable — The  Causes  why  —  Instances  —  Analogy  or 
Parallelism  the  main  Guide  in  Construing  —  Rules  of  Construing  —  We 
begin  with  that  which  is  near  —  Aim  and  Object  of  the  Text  —  Preambles 
of  Laws  —  Shall  the  Motives  of  the  Utterer  guide  us?  —  How  far?  — 
"  Lex  Neminem  cogit  ad  Impossibilia  "  —  Texts  conferring  Privileges  — 
Close  construction  necessary  in  construing  Contracts  —  Construction 
of  Promises  and  Obligations  —  Maximum  aud  Minimum  —  That  which 
agrees  most  with  the  Spirit  and  Tenor  of  the  Text  is  preferable  — 
Effects  and  Consequences  of  the  Construction  may  guide  us  — 
Blackstone  —  Antiquity  of  Law  makes  frequently  extensive  Construction 
necessary  —  Habitual  close  Interpretation  and  Construction  favorable 
to  Civil  Liberty  —  Words  of  a  relative  or  generic  Meaning  to  be  taken 
in  a  relative  or  expansive  Sense  —  Rules  respecting  this  Point  —  The 
Weak  have  the  Benefit  of  Doubt  —  The  Superior  Object  cannot  be 
defeated  by  the  Inferior  —  Recapitulation  of  the  Principles  of  Con- 
struction. 

I.  Construction  is  unavoidable.1  Men  who  use  words, 
even  with  the  best  intent  and  with  great  oare  as  well  as 
skill,  cannot  foresee  all  possible  complex  cases,  and,  if  they 
could,  would  be  unable  to  provide  for  them,  for  each 
complex  case  would  require  its  own  provision  and  rule  ; 
relations  change  with  the  progress  of  time,  so  that,  after  a 
long  lapse  of  time,  we  must  give  up  either  the  letter  of  the 
law,  or  its  intent,  since  both,  owing  to  a  change  in  cir- 
cumstances, do  not  any  longer  agree.  If,  notwithstanding 
all  imaginable  wisdom  in  the  utterer,  construction  becomes 


1  Upon  the  distinction  of  construction  and  interpretation,  see  the  next  note  and 
the  Additional  Note  B.  The  author  himself  has  remarked  that  the  topics  of  this 
chapter  run  for  the  most  part  in  parallel  lines  with  those  of  the  chapter  preceding. 
Some  of  the  editor's  notes  to  that  chapter  are  equally  applicable  to  this;  but  of 
course  it  has  not  been  thought  worth  while  to  repeat  them,  or  even  to  make  more 
than  this  general  reference  to  them.  — Ed. 

(110) 


HERMENEDTICS.  Ill 

thus  necessary,  it  is  still  more  the  case  under  ordinary 
circumstances.  Interpretation,  seeking  but  for  the  true 
sense,  forsakes  us  when  the  text  is  no  longer  directly 
applicable;  because  the  utterer,  not  foreseeing  this  case, 
did  not  moan  it,  therefore  it  has  no  true  sense  in  this 
particular  case.2 


2  Bat  cm  construction,  in  the  sense  in  which  our  author  uses  it,  help  us  much 
further  in  such  cases  of  omission,  etc.,  where  the  text  has  no  true  sense?  If,  indeed, 
the  term  be  used  as  a  mere  negative  of  interpretation,  to  denote  the  cases  in  \\  hicb 
a  conclusion  is  arrived  at,  independent  of  the  words  of  the  text,  we  may  Bay  that 
contradictions  and  omissions,  and  all  kinds  of  defect  in  written  laws,  are  helped  by 
construction.  But,  in  truth,  this  is  no  more  construction  of  the  text  than  it  is  inter- 
pretation. Such  conclusions  are  drawn  from  external  circumstances,  and  from  that 
Vast  and  vague  body  of  rules  known  as  common  law;  and  in  most  instances  the 
conclusions  would  be  precisely  the  same  if  there  were  no  written  text  in  existence 
at  all.  In  common  speech,  it  may  make  little  difference  whether  we  apply  the  term 
construction  to  cases  of  this  kind  or  not;  but  in  a  work  treating  exprofesso  of  the 
subject, it  is  desirable  to  point  out  clearly  that  construction  bete  implies  a  written 
text  on  which  it  is  founded,  as  truly,  though  not  so  closely,  as  interpretation. 

The  true  relation  of  construction  to  interpretation  can  hardly  be  determined, 
unless  we  have  in  the  first  place  determined  the  general  theory  of  law,  a  topic  upon 
which,  as  is  well  known,  our  English  and  American  authorities  hardly  furnish  a 
discussion,  much  less  a  conclusion.  If  we  adopt  the  theory  of  Blackstone,  or  any 
similar  one,  by  which  the  law  is,  in  its  very  nature,  an  uttered  command  given  by  a 
superior,  then  of  course  it  follows  that  interpretation  must,  in  all  cases,  be  the  first 
step  to  be  taken,  and  that  construction  is  only  admissible  when  the  written  text 
fails  to  give  a  satisfactory  meaning-  And  the  practical  result  further  follows  that 
the  presumption  must  always  be  in  favor  of  a  construction  adhering  as  closely  as 
possible  to  the  written  text;  and  further,  that  no  rule  not  consistent  with  that  text, 
or  derivable  from  it,  at  farthest,  by  rules  of  construction,  can  have  any  authority 
whatever. 

On  the  other  hand,  if  we  adopt  the  views  of  law  recognized  at  the  present  day  by 
the  disciples  of  the  historical  school,  according  to  which  the  common  or  unwritten 
law  necessarily  precedes  the  written,  and  exists  by  and  of  itself,  prior  to  any 
formulation  or  amendment  by  the  legislation  of  each  state  respectively,  we  must 
regard  the  relation  of  the  two  processes  to  each  other  as  exactly  reversed;  (or 
interpretation,  depending  entirely  upon  a  written  text,  can  only  come  into  play 
when  the  law  has  been  so  formulated.  Construction,  on  the  other  hand,  instead  of 
being  the  mere  process  by  which  we  supply  defect-  in  a  text,  will  appear  in  its  true 
light  as  the  determination  of  a  rule  of  law  upon  scientific  principles,  from  all  the 
considerations  anil  data  by  which  we  construct  a  rule  of  law  in  cases  where  no  text 
has  ever  existed,  — that  is,  by  which  we  frame  new  rules  of  the  common  law  in 
harmony  with  those  already  recognized 

It  is  true  that,  in  the  sense  our  author  uses  it,  a  distinction  may  be  made  between 
the  construction  of  a  written  law  and  the  construction  of  new  rules  and  principles 
of  the  common  law.  In  the  latter  case,  ex  vi  termini,  there  is  no  written  or 
formulated    law  to   influence  our  conclusions.     In    tin-    former,  there    is    a   written 

law,  bearing  in  some  degree  upon  the  subject,  but  which  has  failed  to  regulate  it, 
either  because  the  particular  subject  was  not  present  to  the  mind  of  the  legislator, 
or  because  the  terms  he  used  were  not  apt  to  fullil  his  purpose.    Construction,  in 


112  HERMENEUTICS. 

By  the  charter  of  appointment  of  the  hereditary  lord 
high  chamberlain  of  England  he  has  a  right  to  the  dress 
worn  by  the  monarch  at  each  coronation,  and  in  that  dress 
this  officer  is  to  appear  on  the  first  court  after  that  cere- 
mony. And  it  is  further  the  law  of  England  that  wherever 
the  word  "  king"  occurs  in  any  law,  the  word  "  queen  "  is 
to  be  substituted  when  the  monarch  is  a  female,  as,  indeed 
the  term  "king's  bench"  changes  instantly  to  that  of 
"  queen's  bench  "  so  soon  as  a  woman  succeeds  to  the  crown. 
The  present  monarch  is  a  queen ;  was  the  officer  to  appear 
in  her  majesty's  dress?  This  instance  has  been  taken  on 
account  of  the  glaring  absurdity  to  which  interpretation 
would  have  led ;  or,  rather,  interpretation  was  not  neces- 
sary, because  there  is  no  dubious  sense  at  all.  The  framer 
of  the  charter  did  not  think  of  the  case  of  a  queen's 
coronation.      The    instrument    itself,   therefore,  expresses 


our  author's  sense,  therefore  becomes,  under  this  theory,  the  formation  of  a  new 
rule  of  law  from  the  general  elements  which  shape  the  entire  law  of  the  state,  with 
the  additional  condition  only  that  the  new  rule  shall  also  harmonize  with  that 
which  has  been  already  formulated  and  written  in  the  text  upon  another  portion  of 
the  same  subject,  or  in  an  imperfect  text  upon  the  same  subject. 

In  fine,  the  result  of  one  theory  is,  that  construction  is  a  mere  succedaneum  for  the 
defects  of  a  written  law,  though  dependent  upon  that  law,  and  thus  divided  from 
mere  custom.  While,  upon  the  other  theory,  construction  is  the  higher  process, 
framing  a  new  law  from  the  general  principles  of  all  law,  with  only  the  limitation 
above  expressed;  while  interpretation  is  the  inferior  process  of  ascertaining  the 
extent  and  meaning  of  the  formula  to  which  such  a  rule  has  previously  been 
reduced  in  writing. 

And  this  is  the  sense  of  construction  which  our  author  had  in  mind  in  denning  the 
term  as  "  the  representing  the  entire  whole  from  given  elements  by  just  conclu- 
sions." In  some  places  he  has  not  been  consistent  with  this  idea,  as  in  treating  of 
interpretation  he  has  sometimes  represented  it  as  required  only  in  cases  of  peculiar 
obscurity  or  difficulty;  and  thus  departed  from  the  first  position  assumed  at  the 
outset,  that  it  was  common  to  all  language  conveying  thought.  It  is  hardly  sur- 
prising, when  we  consider  the  theories  of  law  which  were  found  in  all  our  books, 
without  exception,  at  the  time  Dr.  I>ieber  wrote,  that  an  author,  not  a  jurist  by 
profession,  and  not  accustomed  to  trace  legal  principles  to  their  logical  results, 
should  occasionally  be  led  into  verbal  inconsistencies  of  this  character;  but  the 
definition,  already  quoted,  stands  in  the  passage  where  the  distinction  between 
construction  and  interpretation  is  expressly  laid  down,  and  no  doubt  represents  his 
deliberate  thought  upon  the  subject.  —Ed. 


ELEEMENEUTICS.  113 

nothing  in  regard  to  this  case;  for  impossible  things  are 
nowhere  to  be  supposed;  and  there  are  very  many  things 
impossible,  though  not  physically  impossible.  It  was 
impossible  for  the  lord  high  chamberlain  to  appear  in 
petticoats.  Ludicrous  as  this  instance-  seems,  there  are 
many  others,  touching  subjects  of  the  highest  importance, 
which  are  equally  strong  in  their  character. 

It  appeared  in  a  case  in  London,  in  October,  1837,  that 
there  are  five  hundred  acts  relating  to  turnpikes  and  roads, 
many  of  which  affect  the  jurisdiction  over  them  and  clash 
most  seriously.  Interpretation  cannot  lead  us  out  of  such 
mazes. 

A  contemporary  periodical  made,  not  long  ago,  the  fol- 
lowing remark  respecting  property  left  for  public  purposes, 
especially  for  schools  and  other  institutions  for  education, 
if  they  prescribe  particulars  relating  solely  to  the  period  of 
the  foundation.* 

"An  adherence  to  original  rules,  when  such  rules  are  no 
longer  applicable,  owing  to  change  of  circumstances,  is,  in 
effect,  to  defeat  the  will  of  the  testator.  In  the  instance  of 
private  property,  an  individual,  by  a  rule  of  law  called  the 
rule  against  perpetuities,  is  not  allowed  to  fetter  an  inherit- 
ance beyond  a  life  or  lives  in  being,  and  twenty-one  years 
afterwards,;  the  average  of  which  time  has  been  calculated 
to  amount  to  seventy  years.  For  a  longer  time  than  this  it 
cannot  be  conceived  that  the  circumstances  of  a  family  can 
be  foreseen  ;  and,  for  this  reason,  the  law  gives  the  power 
to  the  individual  in  possession,  at  the   expiration  of  that 


*  London  Quarterly  Journal  of  Education,  No.  XIX,  article  on  Lieber's 
Girard  Report. 


114  HERMEXEUTICS. 

period,  to  remodel  the  limitations  of  the  property  to  suit 
the  altered  position  of  the  family  in  society.  Following 
this  example,  might  not  some  very  salutary  regulations  be 
laid  down  with  regard  to  property  given  for  public  pur- 
poses? Nothing  can  be  more  absurd,  than  to  adhere  to  the 
letter." 

I  proceed  now,  to  the  general  principles  Ox  construction. 

II.  All  principles  of  interpretation  at  all  applicable  to 
construction,  according  to  its  definition,  are  good  and  valid 
also  with  regard  to  construction,  for  the  same  reasons  that 
they  hold  in  interpretation. 

The  main  aid  and  guide  of  construction  is,  as  has  been 
stated  already,  analogy  ; 3  understanding  the  term  as  ex- 
plained in  chapter  III.,  iii.,  or  rather,  parallelism.  Follow- 
ing a  similar  principle  to  that  given  in  chap.  IV.,  xiv.,  we 
shall  find  that,  in  use  of  parallelism,  we  have  carefully  to 
begin  with  that  which  is  near,  and  proceed  to  that  which  is 
less  so,  according,  only,  as  we  find  ourselves  unable  to 
construe  without  seeking  means  in  a  wider  circle. 

If  we  have  to  construe  part  of  a  speech,  will,  law,  or 
constitution,  we  ought  first  to  inquire  whether  we  can  con- 
strue it  by  way  of  analogy  from  the  same  speech,  will, 
law,  or  constitution  ;  if  not,  whether  there  are  similar  acts, 
&c,  which  have  proceeded  from  the  same  authority  If 
we  have  to  construe  commentaries,  we  have  to  try  first 
whether  we  can  draw  any  assistance  from  the  commen- 
taries or  glosses  of  the  same  author,  before  we  proceed  to 
those  of  another :  and  before  we  seek  for  assistance  in  the 


3  Upon  Analogy,  see  Additional  Note  G.  — Ed. 


IIKK.MKNKl   I  K  >.  1  l.~, 

whole  literature  of  the  language,  we  oughl  to  examine  the 
commentators  and  writers  of  the  same  period.  So  the 
theologian,  in  order  to  interpret  or  construe  a  sentence  of 
Paul,  must  firsl  inquire,  whether  he  can  explain  it  from 
other  parts  of  Paul's  writings;  if  not,  he  musl  then 
inquire  whether  he  can  find  assistance    in    other    writings 

- 

of  the  new  testament;  and  so  on. 

There  may  exist,  of  course,  some  reasons  why  the  inter- 
preter or  constructor  should  omit  these  links,  as  he  would 
be  obliged  to  do  in  cases  where  Paul  quotes  passages  of 
the  old  testament,  or  uses  words  which  have  reference  to 
the  customs  or  rites  of  Greek  paganism.* 

The  Austrian  civil  code,  introduction,  7,  gives  this  rule  : 
"If  a  legal  case  cannot  be  decided,  either  by  the  words, 
or  the  natural  sense  of  a  law,  it  is  necessary  to  refer  to 
similar  cases  distinctly  decided  by  the  laws,  (in  this  code.  ) 
and  to  the  reasons  of  other  laws  akin  to  the  doubtful  case. 
If  the  case  still  remains  doubtful,  it  must  be  decided 
according  to  the  principles  of  natural  law,  applied  to  the 
carefully  collected  and  maturely  weighed  circumstances." 
We  have  here  the  gradual  exteii>i<>n  of  construction  in  con- 
centric circles  distinctly  prescribed.  See,  also,  the  French 
civil  code,  1161.4 

III.     In  conformity  with  the  primary  rule,  which  dii 


See  Ernesti  [nstitutio,  parts  T.  and  II.  and  his  commentators,  Amnion, 
Stuart,  Terrot,  &c,  and  Home's  introduction  to  the  Critical  Study  of  the 
Scriptures,  vol.  II.  part  II.  Book  II.  Section  I.  and  seq. 

4  "Toutes  les  clauses  des  conventions  s'interpretent  les  tins  par  les  autres  en 
donnant  a  chacune  le  sens  qui  resulte  de  I'acte  entier."    Code  Civil,  §  1161. 

All  the  clauses  of  a  contract  are  to  be  interpreted  by  each  other,  to  as  to  give  each 
the  sense  which  results  from  the  entire  instrument.  —Ed. 


116  HERMENEUTICS. 

us  to  proceed  from  that  which  is  near,  to  that  which  is  less 
so,  we  have  likewise  to  inquire  first  as  to  the  aim  and 
object  of  the  text,  before  we  apply  to  more  general  rules, 
reasons,  or  arguments ;  and  as  it  is  frequently  impossible 
to  learn  the  object  of  a  law  more  clearly  than  by  an 
inquiry  into  the  causes  which  lead  to  its  being  issued,  a 
knowledge  of  these  causes  is  of  the  highest  importance. 
See  1  Blackstone,  59.  Indeed,  the  general  principle,  that 
anything,  which  we  are  desirous  clearly  to  understand, 
must  be  taken  with  all  its  adjuncts  —  a  principle  of 
peculiar  importance  respecting  precedents  —  would  demand 
the  rule  just  given. 

The  Prussian  code,  introduction,  46,  says:  "in  deciding 
upon  dubious  cases,  the  judge  is  not  allowed  to  substitute 
any  other  meaning  for  the  laws  thin  that  which  clearly 
appears  from  the  words,  their  connection,  with  reference 
to  the  doubtful  subject,  or  from  the  next  and  undoubted 
reason  of  the  law."  * 

This  is  the  reason  why  Mr.  Bentham,  in  his  Principles  of 
Legislation,  advises  that  no  law  should  be  passed  without  a 
proper  preamble,  stating  the  reasons  and  causes  of  the  law. 
Still,  preambles  cannot  altogether  supersede  construction, 


*  If  I  quote  frequently  from  the  Prussian  code,  and,  perhaps,  more  so 
than  from  any  other  code  of  the  European  continent,  it  is  simply  because 
it  is  a  fact,  that  far  more  patience  lias  been  bestowed  upon  it,  in  devising 
it,  whatever  may  be  our  opinion  of  some  of  its  details.  The  remarks  of 
Mr.  de  Savigny  in  his  work,  '  On  the  Aptitude  of  the  Present  Age  for 
Legislation  and  Jurisprudence,'  translated  by  A.  Hayward,  Esq.,  of  Lin- 
coln's Inn,  on  the  history  of  this  code,  the  long  time  spent  in  maturing 
it,  and  a  variety  of  means  resorted  to  in  order  to  perfect  it,  are  worthy 
of  perusal,  though  we  do  not  agree  with  Mr.  de  Savigny  on  the  main 
points,  as  to  the  subject  of  his  work. 


JfKKMKNKLTICS.  H 


inasmuch  as  they  themselves  mn-i  necessarily  be  some- 
times subject  to  construction  or  interpretation.  ^\u-\i  as 
preambles  have  been  so  far,  they  are  not  always  safe 
guides,  nor  are  the  titles  of  laws.  See  1  Kent's  Commen- 
taries, Lect.  XX.  p.  460,  and  sequel.5 


6  The  Preamble.— Both  in  England  and  in  this  country,  it  wasal  one  time 
mon  practice  to  prefix  to  each  law  a  preface,  prologue,  or  preamble,  stating  the 
moUvee  and  inducements  to  the  making  of  it;  but  it  is  not  an  essential  part  of  the 
statute,  ami  is  now  frequently,  if  nol  generally,  omitted. 

It  is,  strictly  speaking,  without  force  in  a  legislative  sense;  being  but  a  guide  to 
and  not  the  vehicle  of,  the  import  of  the  statute.    And  to  what  is  it  properly  a  go 
to  the  meaning  of  the  enactment?    No;  but  to  the  intention-  of  the  framer,  which  is 
only  the  firs)  stage  on  the  road,  in  the  construction  of  statutes.    '     •    •    The  pre- 
amble, it  has  been  elsewhere  largely  stated,  is  entitled  togreal  consideration.    1  Story 

on  Const.  (4th  ed.)  338.    It  is,  indeed,  that  introductory  statemenl   (pr ,„„„„)  to 

which  both  reason  and  authority  point,  for  ascertaining  the  intention  of  the  enacl 
ment. 

"The  preamble  is  properly  referred  to,"  says  the  A rican  commentator,  "  when 

doubts  or  ambiguities  arise  upon  the  words  of  the  enacting  pan.  The  preamble  can 
never  enlarge;  it  cannot  confer  any  pour,-  per  se.  Its  true  office  is  to  expound 
powers  conferred,  not  substantially  to  create  them/'    Story,  supra, 

In  the  laws  of  England,  in  doubtful  cases,  recourse  may  be  had  to  the  preamble  to 
discover  the  inducements  the  legislature  had  to  the  making  of  the  statute;  but 
where  the  terms  of  the  enacting  clause  are  clear  and  positive,  the  preamble  cannot 
be  resorted  to.  Lord  Coke  considered  the  rehearsal,  or  preamble,  a  key  to  open  the 
understanding  of  the  statute;  and  it  is  properly  considered  a  good  mean  for  collect- 
ing the  intent,  and  showing  the  mischiefs  which  the  maker-  of  the  act  intended  to 
remedy.  The  civilians  say:  Cessante  legis  prooemio,  cessal  el  ipsa  lex;  but  English 
lawyers  are  aware  how  seldom  the  key  will  unlock  the  casket;  how  rarely  the 
preamble  i-  found  to  state,  beside  the  primary  occasion  of  the  law.  the  full  view-  of 
the  proposer  of  it.  A  particular  mischief  is  of  ten  alluded  to  thai  is  soon  lost  sight 
of,  —  cessat  procemium;  wider  objects  are  embraced,  and  a  general  remedy  provided: 
Dwar.  on  Mat.  :,n:;.  See  also  Sedgw.  on  Stat.  &  Const.  Lav  _M  ed.  .  12  15,  as  to  the 
effect  of  preambles. 

Perhaps  ho  better  criticism  upon  preambles  has  ever  been  made  than  the  often- 
quoted  passage  of  Seneca,  in  his  ninety-fourth  epistle :  "  Non  pi-obo  quod  Platonis 
legibus  adjecta  principia  sunt.  Legem  enim  brevem  esse  oportet,  quo  facilius  ah 
imperitis  teneatur  velut  emissa  divinitus  vox  sit.  .Jul. .'at.  non  disputet— non  disco'i 
sed  parco." 

The  laws  of  the  Byzantine  emperors  are  overloaded  with  preambles,  persuasions 
threats,  and  explanation-  of  motives.  Trendelenburg  remark-,  with  justice,  thai  the 
style  of  German  legislation  and  the  same  may  be  said  with  equal  truth  of  other 
modem  nations)  has  been  chiefly  injured  by  the  Byzantine  versions  of  the  Roman 
law,  by  the  verbose  minuteness  of  professional  stj  le,  and  the  patchwork  of  amend- 
ments with  which  all  modern  legislative  bodies  load  their  statutes.  The  style  of  the 
Twelve  Table-,  and,  in  meat  measure,  that  of  the  law-  of  Mo-,-,  is  brief  and  posi- 
tive.   When  the  law  gives   its  reasons,  it  invite-  the  subject  to  weigh  them,    r 

proper  tone  i-  plain  command.     Naturrecht.  p.  170. 

The/,7/.  ,,i  an  act  (formerly  called  the  rubric,  from  I. ein- written  in  red  Charac- 
ters) was  nol  regularly  prefixed  to  statutes  prior  to  the  eleventh  year  of  Henry  vn. 
Legally,  it  was  no  part  of  the  statute,  and  was  intended  only  for  convenient  r. 


118  HERMENEUTICS. 

IV.     We  have   seen  already,  that,  in   many  cases,  it  is 
difficult  to  discover  the  motives  which  may  have  prompted 


ence,  —  a  mere  name  for  the  act.  It  had,  therefore,  no  "legislative  import,"  and 
furnished  no  clear  indication  of  the  legislative  intent.  "  It  was  a  very  insufficient 
and  unsafe  guide  to  assist  us  in  ascertaining,  even  in  the  most  general  way,  the 
scope  and  purport  of  the  act."    Dwar.  on  Stat.  500. 

At  the  present  time,  more  importance  is  attached  to  the  title.  Where  the  inten- 
tion of  the  legislature  is  not  plain,  and  resort  must  be  had  to  construction,  every 
thing  from  which  aid  can  be  derived  must  have  its  due  share  of  consideration;  and, 
in  such  cases,  the  title  demands  a  degree  of  notice,  especially  when  it  has  undergone 
legislative  discussion  and  scrutiny,  and  the  object  is  there  clearly  set  forth.  It 
cannot  extend  or  restrain  positive  provisions  in  the  body  of  an  act,  but,  "  taken  in 
connection  with  what  are  acknowledged  parts  of  a  statute  (which  it  is  not),  the  title 
may  slightly  assist  in  removing  ambiguities  "  (Dwar.  on  Stat.  501),  mistakes  (Xazro 
v.  Merchants'  Ins.  Co.,  14  Wis.  295),  and  doubts  (Hadlen  v.  Collector,  5  Wall.  107), 
applying  to  acts  of  Congress. 

When  the  constitution  requires  the  subject  of  the  law  to  be  stated  in  the  title,  the 
title  becomes  a  part  of  the  law,  and  may  be  presumed  to  express  the  general  intent 
of  the  legislature. 

The  degree  of  particularity  with  which  the  title  of  an  act  is  to  express  the  subject 
is  never  defined  by  the  constitution,  and  rests  in  the  legislative  will.  It  is  not  neces- 
sary that  the  title  specify  all  the  details  by  which  the  objects  of  the  act  are  to  be 
accomplished.  Many  individual  persons  or  things  may  be  embraced  within  the  same 
subject,  but  all  must  be  minor  parts  of  one  general  whole.  Hence  the  title  does  not 
furnish  an  index  of  the  legislative  purpose,  but,  when  there  is  any  doubt,  may  be 
resorted  to  for  assistance  in  reaching  a  conclusion,  and  may  even  control  a  portion 
of  an  act.  Nazro  v.  Merchants'  Ins.  Co.,  supra.  When  the  title  is  referred  to  in  the 
body  of  an  act,  it  should  receive  especial  attention.  Torreyson  v.  Examiner,  7 
Nev.  19. 

The  fact  that  codifiers  have  placed  a  given  provision  under  a  particular  head  or 
title  in  their  arrangement,  which  has  been  afterwards  enacted,  has  no  very  strong 
influence  in  determining  the  construction  of  such  a  provision.  At  most,  it  only 
shows  the  opinion  of  the  codifiers  as  to  the  proper  classification.  Battle  v.  Shivers, 
39  Ga.  405. 

As  to  definitions  at  the  heads  of  chapters,  and  titles  in  codes,  see  The  People  v. 
Molyneux,  40  N.  Y.  113. 

Cases  bearing  upon  this  subject  are  referred  to  in  Dwarris  on  Statutes,  pp.  264,500, 
501,  and  in  Sedgwick  on  Statutory  and  Constitutional  Law,  pp.  38,  517. 

The  following  recent  cases,  in  addition  to  those  already  mentioned,  are  especially 
■worthy  of  attention:  United  Slates  v.  Fisher,  2  Cranch,  266;  Blanchard  v.  Sprague, 
3  Sumn.  279;  Conner  v.  The  Mayor,  4  N.  Y.  293;  Williams  v.  Williams,  8  N.  Y.  535; 
The  People  v.  McCann,  16  X.  Y.  58;  Brewster  v.  City  of  Syracuse,  19  N.  Y.  116;  The 
People  v.  Lawrence,  41  N.  Y.  137;  Cohen  v.  Barrett,  5  Cal.  195;  Flynu  v.  Abbott,  16 
Cal.  358  (holding  constitutional  provision  directory) ;  Connecticut  Mutual  Ins.  Co. 
v.  Albert,  29  Mo.  181 ;  The  State  v.  Miller,  45  Mo.  495  (holding  constitutional  provision 
mandatory) ;  The  Commonwealth  v.  slifer,  53  Pa.  St.  71;  Stewart  v.  Kinsella,  14  Minn. 
524 ;  The  State  v.  Squires,  26  Iowa,  345. 

By  the  rules  of  interpreting  statute-law,  received  in  Scotland,  an  argument  may 
be  properly  used  from  the  title  to  the  act  itself  (a  rubro  ad  nigrum).  The  preamble,  or 
narrative,  of  an  act,  which  contains  a  recital  of  the  inconveniences  that  had  arisen 
from  the  former  law,  and  the  causes  inducing  the  enactment,  may  be  also  of  great 
use  in  directing  a  doubting  judge.  But  the  chief  weight  in  the  interpretation  of 
statutes  is  to  be  laid  upon  the  statutory  words.  Erskine's  Principles  of  the  Law  of 
Scotland,  vol.  I.,  p.  9.  —  Ed. 


HEKMBNEUTK  3.  H9 

those  who  drew  up  the  text ;  but  it  is  also  dangerous  to 
construe  upon  supposed  motives,  that  is,  such  as  are  not 
ascertainable  from  the  interpretation  of  the  text.  Every 
one  is  apt  to  substitute  what  his  motives  would  have  been, 
or,  unconsciously  perhaps,  to  fashion  the  supposed  motives 
according  to  his  own  interests  and  views  of  the  case  ;  and 
nothing  is  a  more  ready  means  to  bend  laws,  charters, 
wills,  &c,  according  to  preconceived  purposes,  than  their 
construction  upon  supposed  motives.  To  be  brief,  unless 
motives  are  expressed,  it  is  exceedingly  difficult  to  find 
them  out,  except  by  the  text  itself;  they  must  form,  there- 
fore, in  most  cases,  a  subject  to  be  found  out  by  the  text, 
not  the  ground  on  which  we  construe  it. 

The  Prussian  code  distinctly  declares,  respecting  privi- 
leges, that,  "in  doubtful  cases,  reference  shall  be  had 
rather  to  the  proper  contents  of  the  privilege  (».  e.  the 
instrument  granting  it)  than  to  the  motives  specified  in  the 
first  grant  of  the  same."  Introduction,  Of  Laws  in 
General,  58. 

V.  No  law,  will,  or  document  whatever,  which  forms 
the  text,  can  be  understood  to  demand  impossible  things. 
If  a  provision,  or  part  of  it,  directly  does  this,  that  part, 
or  that  provision,  is  void,  and  not  the  whole,  on  that 
account.6     Lex  neminem  cogit  ad  impossibilia. 


8  "And  not,  on  that  account,  the  whole."  This,  of  course,  is  to  be  understood  with 
the  qualification  that  all  which  depends  on  the  impossible  portion  falls  with  it.    If 

the  performance  of  a  condition  becomes  impossible,  the  effect  01  performance  "ill 
fail,  whether  it  be  suspensive  or  resolutive.  Thus,  if  the  condition  be  precedent  t'> 
the  vesting  of  a  right,  and  becomes  impossible  of  performance,  the  right  will  not  TOSfc 
Hut  if  the  right  be  Already  vested,  and  the  condition  is  to  devest  it,  the  right  will 
stand  when  the  condition  becomes  impossible.    2  Bla.  Comm.  157. 

Upon  the  maxim  quoted,  see  Nov.-  Maxims  (ed.  1870),  p.  23;  Broom's  Maxims. 
p.  181,  chap.  5.  To  the  same  effect  is  the  maxim  of  Celsus  (L.  In),  Dig.  L.  17),  Impos- 
tibilium  nulla  obligutio  est.  —  Ed. 


120  HERMENEUTICS. 

A  short  time  ago  the  Legislature  of  South  Carolina 
passed  an  act,  incorporating  a  bank,  in  which  the  day  when 
the  subscription  books  were  to  be  opened  and  that  on  which 
they  were  to  be  closed  were  fixed.  Before  the  act,  however, 
finally  passed,  an  amendment  was  made,  which  fixed  the 
day  on  which  the  books  were  to  be  opened  beyond  that  on 
which  they  were  to  be  closed,  without  altering  the  latter. 
And  so  the  act  passed  in  the  press  of  business.  Similar 
mistakes  have  happened  in  England. 

VI.  Whenever  the  text,  to  be  interpreted,  bestows 
privileges  upon  some  one  or  more  persons  (to  the  exclu- 
sion, therefore,  of  others),  ambiguous  parts  are  always  to 
be  construed  in  favor  of  the  non-privileged,  provided  the 
object  of  the  privilege  be  not  thereby  defeated.  Common 
sense  dictates  this  limitation  of  the  constitution  required 
by  the  commonest  principle  of  fairness. 

Those  who  are  privileged  are  not  farther  to  be  favored 
than  the  instrument,  granting  the  privilege,  distinctly  indi- 
cates. If  a  favor,  or  privilege,  has  been  granted  in 
consideration  of  some  service  done,  or  to  be  done,  they 
must  be  considered  as  equivalents,  and  the  matter  as 
settled. 

In  addition  to  English  commentaries  on  this  subject,  we 
mention  here  the  Prussian  code,  introduction,  54,  "privi- 
leges and  exemptions  must  be  construed,  in  doubtful  cases, 
so  as  to  be  least  injurious  to  the  third  {i.e.  the  non- 
privileged)  person."  The  Roman  civil  code  directs  the 
same.7 


7  Privilege  {priviUgium)  is  defined  to  be  a  private  or  particular  law,  whereby  a 
private  person  or  corporation  is  exempted  from  the  rigor  of  the  common  law;  or  it 
is  some  benefit  or  advantage  granted  or  allowed  to  any  person,  contrary  to  the  course 


HERMEXEUTICS.  1  lM 

VII.  The  more  the  text  part:ikes  of  the  character  of  a 
compact,  the  more  necessary  becomes  close  construction; 
for  the  compact  must  be  acknowledged  as  the  true  and  sole 
ground  of  agreement;  and  the  nature  of  the  text  obliges 
us  to  presume  that  much  care  has  been  bestowed  upon  the 
selection  of  words  :  still,  if  a  word,  or  sentence  of  a  con- 
tract, leaves  a  decided  doubt,  sound  sense  dictates  thai 
they  are  to  be  taken  most  strongly  against  the  party  using 
it;  because  it  was  his  affair  to  word  the  instrument  well : 
Verba  ambigua  fortius  accipiuntur  contra  'proferentem.  The 
civil  law  acknowledges  the  same  principle  :  In  obscuris  quod 
minimum  est,  sequimur  ;  secundum  promissorem  interpre- 
tamur.     Dig.  L.  50,  Tit.  17, 1.  9,  L.  45,  tit.  1.  1.  99,  pr.8 


of  law,  and  is  sometimes  used  for  a  place  that  hatha  special  immunity;  a.  privilege 
is,  therefore,  personal  or  real.    Jacob"-  L.  Die,  art.  "  Pri\  ilege." 

In  common  use,  the  word  with  us  l>a>  almosl  b>-t  its  proper  sense,  and  has  come 
to  be  used  as  equivalent  merely  to  benefits  or  advantages.  It  is  so  defined  in 
Webster,  and  President  Woolsey  speaks  of  "difference  of  privileges  in  regard  to  the 
tenure  of  land  in  the  marriage  condition  "  (Political  Science,  vol.  I.,  p.  270),  where  a 
civilian  would  simply  say  "  privileges." 

But  in  "  mill-privileges,"  "  water-privileges,"  and  the  like,  the  proper  force  oi  the 
word  is  still  visible,  the  terms  being  applied  to  individual  rights  in  running  streams, 
or  other  limits  that  by  the  common  law  would  be  public,  or  common  property.  So, 
when  the  right  of  suffrage  is  termed  a  privilege,  the  sense  is,  not  that  it  i-  a  peculiar 
benefit  or  advantage  to  the  voter,  but  thai  it  isnol  a  matter  of  common  right  to  all 
persons,  but  one  granted  or  intrusted  by  the  Constitution  to  a  particular  class  of 
citizen.-. 

The  "  distinction  between  a  statute  which  establishes  a  genei'al  rule  of  law  and 
one  which  merely  confers  a  right  upon  individuals  "  is  stated  by  .Mr.  Holland  I 
on  the  Form  of  the  I. aw,  p.  174)  as  consisting  only  in  the  lad  that  the  citizen  i-  -ab- 
ject to  one  wherever  be  goes,  and  to  the  other  only  in  a  particular  place,  or  under 
particular  conditions.  This  certainly  admits  that  both  alike  have  the  character  of  law. 
Yet,  even  so  stated,  Mr.  11.  regards  it  as  of  great  importance,  and  call-  it  a  "  scandal  " 
that  an  apparently  special  act  occasionally  contains  a  fragment  "i  general  law.  /•/. 
p.  171  ;  see,  also,  pp.  130,  149).  He  refer.-  to  I'.aincl  p.  COX,  :•  Q.  I'..  |>I7.  a-  a  proof  that 
the  decisions  of  the  superior  courts  have  not  always  been  free  from  confusion  upon 
the  subject. 

Privileges. and  beneflcia  legis  arc  to  be  interpreted  by  the  general  rule-.  In  their 
case,  as  well  as  others,  grammatical  interpretation  is  to  be  employed  in  case  of 

doubt ;  and  so  privileges  of  a  general  import  are,  in  cases  of  doubt,  i"  i"-  uudcrsl 1 

according  to  the  usual  meaning  of  the  words,— that  is,  as  general.  Thibaul  rand., 
§49.  Compare  Savigny's  System,  vol.  I.,  §  ;;o,  notes  h  and  i,  and  §  37;  L.  ■},  1).,  I.  4; 
L.  192,  §  2,  I),  de  U.  J.  50,  17.  —  ED. 

8  The  second  passage  quoted  in  the  text  is  part  of  a  fragment  of  Cclsus,  the  whole 
of  which  deserves  notice  in  this  connection. 

Quidquid  astringendse  obligations  est,  id  nisi  palam  verbis  exprimetur  omissura 


122  HEHMENEUTICS. 

VIII.  Whenever  the  text  expresses  the  promise  or 
obligation  of  performing  some  act,  the  demand  contained 
in  the  text  is  to  be  taken  as  the  minimum,  if  it  involves  a 
sacrifice  of  the  performer  and  a  benefit  of  the  person 
towards  whom  the  act  is  to  be  performed ;  but  as  the 
maximum,  if  the  performance  of  the  act  is  to  the  advantage 
of  the  performer,  and  the  disadvantage  of  the  other  party.9 

Good  faith  and  common  sense  are  sufficient  to  show  the 
justice  of  this  rule  to  be  highly  important,  as  the  disregard 
of  it  is  contrary  to  these  first  elements  of  all  interpretation 
and  defeats  the  objects  of  any  text  of  the  above  character. 

A  leaves  a  large  fortune  to  B,  on  condition  to  pay  annually 
the  sum  of  £500  to  a  hospital ;  in  case  of  failure,  C  shall 
come  in  as  heir  and  have  half  of  the  property.  B  is  of  a 
peculiarly  benevolent  disposition,  and  pays  £1,000  instead 


intelligendum  est;  ac  fere  secundum  promissorem  interpretamur:  quia  stipulatori 
liberum  fait  verba  late  concipere. 

To  the  same  effect  is  a  passage  of  Venuleius,  L.  38,  §  18,  Dig.  de  V.  O.  (45, 1).  In 
stipulationibus  cum  qua^retur  quid  actum  sit,  verba  contra  stipulatorem  interpre- 
tanda  sunt. 

It  will  be  noticed  that  in  the  Roman  stipulatio,  it  was  the  stipulator,  or,  as  we 
should  say,  the  promisee,  who  formulated  the  words  of  the  obligation.  In  our  mod- 
ern forms  the  same  principle  would  lead  to  an  interpretation  favorable  to  the  obligee 
or  promisee. 

That  all  the  words  of  the  deed  in  construction  be  taken  most  strongly  against  him 
that  doth  speak  them,  and  most  in  advantage  of  the  other  party.  Verba  cartarum 
fortius  accipiuntur,  contra  proferentem,  et  qurelibet  concessio  fortissime  contra 
donatorem  interpretanda  est.  Co.  Lit.  183;  Finch,  6;  Co.  Lit.  36,  182;  Plow.  160. 
And  yet  this  is  to  be  understood  with  this  limitation:  that  no  wrong  be  thereby  done; 
for  it  is  a  maxim,  in  this:  Quod  legis  constructio  non  facit  injuriam.  Co.  Lit.  183; 
Finch,  6;  Shephard's  Law  of  Common  Assurances,  p  265. 

The  canon  law  gives  the  same  rule  in  a  still  more  general  form. 

Odia  restringi,  favores  convenit  ampliari.    C.  15,  de  R.  J.,  in  6to. 

Plus  semper  in  se  continet  quod  est  minus.    C.  35,  de  R.  J.,  in  6to. 

9  In  all  cases  where  this  rule  is  applied,  it  is  assumed  that  the  relation  of  greater 
and  less  is  clearly  determined,  and  not  likely  to  change.  Where  quantities  of 
space  or  number  only  are  concerned,  the  rule  is  not  likely  to  lead  to  difficulty;  but 
where  the  distinction  is  of  value,  merit,  preference,  etc.,  a  change  in  the  relations  of 
the.  two  terms  almost  certainly  destroys  the  rule.  See  the  case  of  spring  and  winter 
wheat,  ante,  note  20  to  chap.  IV.  The  penalty  of  a  bond  is  usually  placed  so  high  that 
it  will  always  be  to  the  interest  of  the  obligor  to  perform,  rather  than  incur  it.  But, 
suppose  the  case  otherwise.  Has  he  the  option  to  submit  to  the  penalty?  It  seems 
that  he  has  not.  See  early  authorities  collected  in  8  Viner's  Abridgment,  68;  also 
Hooker  v.  Pynchon,  8  Gray,  550;  Darley  v.  Litchfield,  10  Mich.  29. 


HERMENEUTICS. 


123 


of  £500  to  the  hospital.  C  brings  in  an  action,  claiming 
half  of  the  fortune,  od  the  ground  that  B  baa  noi  Btrictly 
complied  with  the  terms  of  A's  will.     The  judge  would  be 

obliged  to  decide  that  there  is  no  ground  for  the  action, 
because,  in  this  case,  the  minor,  £500,  is  contained  in  the 
major,  £1,000.  B  has  performed  his  obligation,  and  done 
something  over  and  above  it.  The  sum  of  i*"«<><>,  mentioned 
in  the  will,  is  the  minimum,  because  its  payment  is  a  sacri- 
fice to  B,  and  a  benefit  to  the  hospital. 

The  case,  related  above,  when  Spinola  was,  according  to 
the  articles  of  surrender,  to  garrison  one  thousand  men  in 
Wesel,  and,  on  complaint  that  he  had  sent  in  more,  pleaded 
that  he  complied  with  the  articles,  because  he  had  sent  one 
thousand  men,  and  that  the  said  articles  did  not  stipulate 
that  he  should  not  garrison  more  than  one  thousand  in 
Wesel,  is  likewise  in  point. 

It  was  faithless  and  against  common  sense  in  Spinola  to 
interpret  thus  ;  the  capitulation  expressed  the  maximum, 
because  the  performance  of  the  act  was  beneficial  to  him, 
and  exacted  a  sacrifice  on  the  part  of  the  citizens.  Indeed, 
the  number  of  the  soldiers  to  be  quartered  in  Wesel,  of 
itself,  was  of  no  importance ;  it  was  the  support  they 
required,  and  their  military  importance  with  regard  to  the 
prosecution  of  the  war,  which  made  the  capitulation  desir- 
able. The  citizens  of  Wesel  would  have  had  no  right  to 
complain  had  Spinola  quartered  with  them  eight  hundred 
men  only ;  but  the  case  would  have  changed  had  the  one 
thousand  men  been  demanded  on  their  part  on  account  of 
security,  for  instance,  or  that  they  might  have  an  excuse 
for  surrendering,  by  showing  his  strength. 

If,  however,  the  service  to  be  performed,  and  stipulated 


124  HERMENEUTICS. 

for,  is  of  a  kind  that,  if  the  measure  agreed  upon  be 
exceeded,  it  becomes  an  injury,  good  faith  and  common 
sense  oblige  us  to  consider  the  stipulation  a  maximum. 
To  many  readers,  all  these  remarks  may  appear  superfluous  ; 
yet  violations  of  these  elementary  rules  have  taken  place 
so  often,  in  order  to  rob  people  of  their  property,  that 
it  is  right  we  should  clearly  present  them  to  our  minds. 
Respecting  J;he  last  rule,  I  instance  a  case  in  which  A  was 
obliged  to  let  B  have  sufficient  water,  from  a  dyke,  to  drive 
B's  mill.  It  was  stipulated  that  a  certain  flood  gate  should 
not  be  closed.  In  consequence  of  a  dispute,  A  opened  two 
instead  of  one,  and  destroyed  much  of  B's  property,  main- 
taining that  he  had  complied  with'  the  contract. 

IX.  As  we  are  bound  to  prefer  that  which  is  fair  to 
that  which  is  unfair,  if  the  mere  words  of  the  text  may 
mean  one  or  the  other,  so  we  are  bound  to  prefer  in  con- 
struction that  which  agrees  most  with  the  substance  of  the 
text. 

1  Blackstone,  60,  French  Civil  Code,  1158  ;10  Pufendorf, 
Law  of  Nature  and  Nations,  Book  V.  12.  Grotius  as 
quoted  above. 

X.  The  effect  and  consequences  may  frequently  guide 
us  in  construction,  but  with  the  same  caution  which  we 
recommend  with  regard  to  deriving  assistance  from  the 
motives  of  the  utterer ;  for  people  imagine  very  different 
effects  to  ensue  from  the  same  causes,  and  again,  they  have 


w  Code  Civil,  §  1153.  Les  termes  susccptibles  de  deux  sens  doivent  etre  pris  dans 
le  sens  qui  convient  le  plus  a  la  matiere  du  contrat. 

Terms  capable  of  a  double  sense  should  be  understood  in  that  which  agrees  best 
with  the  subject  of  the  contract. —  Ed. 


HERMENEUTICS.  125 

very  different  opinions  respecting  the  beneficial  tendency  of 
the  same  effect. 

See  1  Blackstone,  59;  1  Kent's  Commentaries,  Lect.  xx. 
460,  and  sequel. 

Though  I  shall  touch  upon  the  subjeel  of  the  construc- 
tion of  laws  separately,  I  will  give  here  Blacksi 's  words 

respecting  it;  because  they  arc  applicable  in  a  wider  <ircle 
than  merely  to  laws.  He  says,  I.  59, —  "The  fairesl  and 
most  rational  method  to  interpret  the  will  of  the  legislator, 
is  by  exploring  his  intentions  at  a  time  when  the  law  was 
made,  by  signs,  the  most  natural  and  probable.  And  these 
signs  are  cither  the  words,  the  context,  the  subject-matter, 
the  effects  and  consequence,  or  the  spirit  and  reason  of  the 
law." 

I  have  never  been  able  to  understand  how  the  subject- 
matter,  effects,  &c,  can  be  called  signs.  Pufendorf  has 
been  justly  followed  lry  Blackstone  on  this  subject,  and  the 
words  of  the  former  are:  "  Signa  ilia  sunt  duum  generum, 
verba,  ct  alioe  conjecture ;  quoe  considerantur  aut  seorsim 
aut  conjunctim."  De  Jure  N.  et  G.  v.  cap.  xii.  2.  But 
the  word  sign  must  be  taken  here  in  the  peculiar  sense 
which  Pufendorf  defines  in  the  work  itself.11 

XL  The  farther  removed  the  time  of  the  origin  of  any 
text  may  be  from  us,  the  more  we  are  at  times  authorized 
or  bound,  as  the  case  may  be,  to  resort  to  extensive  con- 


11  Puffendorf  says,  in  the  passage  quoted:  "These  signs  consist  either  in  words  or 
in  conjecture- ;  and  these  are  to  lie  considered  cither  separately  or  conjointly."  To 
which  bis  com  men  ta  tor,  Barbeyrac,  adds:  "  That  is  to  say,  so  that  the  conjectures  are 
drawn  either  from  the  words  alone,  or  from  some  tiling  else  not  contained  in  them." 
Lc  Droit  de  la  Nature  et  des  Gens,  traduit  par  Barbeyrac,  Amsterdam,  1734.  Tom 
II.,  p.  140.  It  is  evident  that  the  distinction  thus  made  corresponds  to  our  author's 
between  interpretation  and  construction,  rather  than  to  any  subdivision  of  either  title. 
See  additional  Note  15,  on  the  Division  of  Interpretation,  and  note  2,  p.  Ill  ante.  —ED. 


126  HERMENEUTICS. 

struction.  For  times  and  the  relations  of  things  change, 
and  if  the  laws,  &c,  do  not  change  accordingly,  to  effect 
which  is  rarely  in  the  power  of  the  construer,  they  must  be 
applied  according  to  the  altered  circumstances,  if  they 
shall  continue  to  mean  sense  or  to  remain  beneficial.  The 
benefit  of  the  community  is  the  supreme  law,  and  however 
frequently  this  maxim  may  have  been  abused,  and  is  daily 
abused,  it  is  nevertheless  true.  Whether  we  rejoice  in  it 
or  not,  the  world  moves  on,  and  no  man  can  run  against 
the  movement  of  his  time.  Laws  must  be  understood  to 
mean  something  for  the  advantage  of  society ;  and  if 
obsolete  laws  are  not  abolished  by  the  proper  authority, 
practical  life  itself,  that  is,  the  people,  will  and  must 
abolish  them,12  or  alter  them  in  their  application.     Lord 


12  The  question  whether  written  law  can  be  repealed,  in  whole  or  in  part,  by  cus- 
tom, has  given  rise  to  much  difference  of  opinion  among  Roman  jurists.  The  texts 
relating  to  this  subject  are  the  following:  — 

Ea  (jura)  vero  quae  ipsa  sibi  quasque  civitas  constituit,  ssepe  mutari  solent  vel 
tacito  consensu  populi,  vel  alia  postea  lege  nata.    In6t.  I.,  tit.  2,  de  jure  natur.,  §  11. 

Sed  et  ea  qua?  longa  consuetudine  comprobata  sunt,  ac  per  annos  plurimos  obser- 
vata,  velut  tacita  civium  couventio  non  minus  quam  ea,  quae  scripts  sunt  jura,  ser- 
vantur.    L.  35,  Dig.  I.,  tit.  3. 

Quare  rectissime  ctiam  illud  receptum  est  ut  leges  non  solum  suffragio  legislatoris, 
sed  etiam  tacito  consensu  omnium  par  desuetudinem  abrogentur.  L.  32,  Dig.  I.,  tit. 
3,  §1. 

Consuetudinis  ususque  longaevi  non  vilis  auctoritas  est,  sed  non  usque  adeo  sui 
valitura  momento  ut  rationem  vincat  ant  legem.    L.  2,  Cod.  VIII.,  tit.  53. 

The  difficulty  arises  from  the  last  passage,  and  especially  as  to  the  true  meaning 
of  the  words  rationem  and  legem.  The  better  opinion,  and  that  held  by  Puchta  and 
Savigny  (1  Puchta,  Inst.  48;  1  Puchta,  Vorles.,  30,  42;  1  Sav.  System,  151;  Beil.  2,  p. 
400),  seems  to  be  that  general  law  can  repeal  a  general  or  particular  custom;  that 
general  custom  can  repeal  a  general  or  particular  law;  that  a  particular  law  can 
repeal  a  particular,  but  not  ageiieral,  custom ;  and  that  a  particular  custom  can  repeal 
a  particular,  but  not  a  general,  law.  Savigny,  commenting  on  the  above  passage  in 
the  code,  is  of  the  opinion  that  it  applies  only  to  particular,  and  not  to  general,  cus- 
toms ;  that  the  word  lex  means  a  general  law ;  and  that  the  word  ratio  means,  not  a 
ratio  juris,  nor  abstract  reason,  but  the  ratio  publicce  titilitatis.  The  import  of  the 
passage  he  takes  to  be  this:  Particular  customs  are  invalid  if  opposed  to  the  general 
interest  of  the  state,  whether  such  general  interest  be  declared  in  a  general  law  or 
not.    Lindley's  Introduction  to  Jurisprudence,  Appendix,  p.  188. 

It  has  been  repeatedly  held  by  English  writers  and  judges  that  a  law  cannot  be 
repealed  by  time,  and  that  no  custom  can  take  away  the  force  of  an  act  of  Parlia- 
ment.   Co.  Lit.  113  a,  115  a;  1  Bla.  Comm.  186;  2  Dwar.  on  Stat.  529;  White  v.  Root, 


HERMENEUTIC8.  l-'7 

Bacon  says:  "Let  penal   laws,  Lf  they  have  been  sleepers 
of  long,  or  if  they  be  grown  unlit  for  the  present  time,  be 


2  Term  Rep.  '271,  per  cur.  An  act  of  Parliament  cannot  be  repealed  by  non-user. 
Notwithstanding  any  practice  that  may  have  obtained  to  the  contrary,  aa  long  as  the 
statute  remains  unrepealed,  we  must  see  it  carried  into  execution. 

But  custom  is  of  great  force  in  the  construction  of  statute-;  and,  on  the  same 
principle,  it  seems  difficult  to  deny  that  long  and  uniform  disuse  might  amount,  in 
some  cases,  to  a  practical  repeal.  BedgW.  on  Stat,  and  Const.  Law  (Pomeroy'S  e<l.), 
96;  Leigb  v.  Rent,  3  Term  Rep.  369,  per  Lord  Kenyon.  Thongh, where  the  words  of 
an  act  of  Parliament  arc  plain,  it  cannot  be  repealed  by  non-nser,  yet,  where  there 
has  been  a  series  of  practice  without  exception,  it  goes  a  great  way  to  explain  them 
Where  there  is  any  ambiguity. 

A  practical  admission  that  statutes  do  become  obsolete  by  time,  of  the  strongest 
kind,  has  been  made  by  the  various  act-  of  Parliament  passed  "f  late  \ ears  t"  repeal 
such  obsolete  statutes,  for  the  purpose  of  getting  ml  of  them  from  the  printed 
editions.  The  first  of  the  series  was  the  so  called  Expurgation  Act  of  1856  (19  & 
20  Vict.,  c.  64).  That  of  24  &  25  Vict.,  c.  101,  repealed  statutes  passed  between  U  Geo. 
III.  (1771)  ami  16  &  17  Viet.  (1853),  thus  showing  that  a  very  brief  period  is  required 
in  some  case-  to  make  a  statute  obsolete.  The  series  was  completed  by26&  27  Vict., 
c.  125,  repealing  obsolete  statutes  between  Magna  Charta  and  the  reign  of  .lame-  n., 
and 30 & 31  Vict.,  c.  59,  between  1  Wm.  & M.  and  10  Geo.  UL  Full  accountsof  these 
acts  may  be  found  in  the  following  passages  of  Hansard's  Parliamentary  Debates: 
Vol.  cxli.,  p.  1084;  vol.  cliv.,  pp.  4S;j,  l:>70;  vol.  clvi.,  p.  1238;  vol.  clxi.,  p.  1057;  vol. 
clxxi.,  p.  776;  vol.  clxxxvii.,  p.  1198. 

Dwarris  has  said,  indeed  (p.  529),  that  this  very  process  of  repeal  is  proof  that  the 
statutes  had  not  lost  their  force  by  mere  non-user,  and  instances  the  Statute  II  Geo. 
III.,  c.  58,  which  was  held  necessary  to  repeal  laws  as  old  as  the  fifteenth  century,  In 
regard  to  the  qualifications  of  members  of  Parliament.  But  the  recent  acts  go  upon 
a  different  theory. 

In  Scotland,  where  the  authority  of  the  civil  law  is  recognized,  it  is  held  that,  as 
one  statute  may  be  explained  or  repealed  by  another,  so  a  statute  may  be  explained 
by  the  uniform  practice  of  the  community  (L.  37,  D.  de  legibus,  L,  3),  and  even  go 
into  disuse  by  a  posterior  contrary  cu-toni.  But  this  power  of  custom  to  derogate 
from  prior  statutes  is  confined  by  most  [Scotch]  lawyers  to  statutes  concerning 
private  right,  and  does  not  extend  to  those  which  regard  public  policy.  (Smollet, 
Feb.  1729;)  Erskine's  Principles  of  the  Law  of  Scotland,  book  I.,  tit.  1,  §  16.  — 
Dwarris,  p.  529,  copied  by  Sedgwick,  p.  95. 

To  the  last  remark  it  should  be  added  that  in  England  the  reverse  seems  to  be  the 
case,  at  least  practically.  The  statutes  which  have  been  disregarded  as  obsolete, 
and  at  last  repealed  for  the  same  reason,  were  mostly  those  which  regard  public 
policy. 

The  following  extract  from  statute  12  Rich.  II.,  c.  2  (A.  D.  1388),  is  among  the  acts 
not  regarded  as  obsolete :  — 

"  Nor  that  none  which  pursueth,  by  him  or  by  other,  privily  or  openly,  to  be  in  any 
manner  office,  shall  be  put  in  the  same  office,  or  in  any  other;  but  that  they  make 
all  such  officers  and  ministers  [i.e., all  public  officers  in  the  kingdom]  of  the  best  and 
most  lawful  men,  and  sufficient  to  their  estimation  and  knowledge."  The  Statutes 
Revised  (ed.  1870),  vol.  I.,  p.  236. 

When  we  reflect  that  this  statute,  from  its  date,  is  part  of  the  common  law  of  the 
United  States.it  is  clear  that,  if  it  were  not  practically  obsolete,  all  the  recent  efforts 
at  civil-service  reform  would  be  superogatory,  not  to  speak  of  the  doubt  that 
might  be  thrown  on  the  lawful  tenure  of  a  great  many  elective  and  other  offi- 
cers!—  Ed. 


128  HERMENEUTICS. 

by  wise  judges  confined  in  the  execution  ;  "  *  and  even  a 
Mansfield  was  obliged  to  charge  the  jury  to  find  the  value 
of  stolen  articles  under  forty  shillings,  when  the  real  and 
evident  value  was  far  higher. f 

Great  evil  has  arisen  at  various  epochs  from  insisting  on 
established  laws  in  times  of  great  crisis  ;  as  if  the  human 
mind  could  be  permanently  fettered  by  laws  of  by-gone 
generations.  It  was  the  misfortune  of  the  Catholic  party, 
at  the  time  of  the  Reformation,  that  they  did  not  understand 
the  regenerating  spirit  of  Europe,  and  thought  they  could 
conjure  it  by  the  formulas  of  ancient  laws .  Neither  the  papal 
excommunication,  nor  the  canon  law,  was  able  to  banish  or 
encircle  this  spirit.  Previous  to  almost  every  revolution, 
there  exists  a  party  whose  characteristic  trait  is  this  mistake. 

A  single  <>lance  at  the  book  on  the  State  in  the  Political 
Ethics13  will  suffice,  I  trust,  to  protect  me  against  any 
imputation  that  I  do  not  sufficiently  value  the  supremacy 
of  the  law.     I  consider  the  principle  all  important. 

XII.  Yet  it  is  necessary  to  remember  well  that,  in 
general,  nothing  is  so  favorable  to  that  great  essential  of 
all  civil  liberty,    the  protection  of  individual   rights,    as 


*  Bacon's  Essays,  Civ.  and  Moral,  on  Judicature. 

t  The  often,  perhaps  too  often,  quoted  case,  where  the  Chief  Justice  of 
England  punned  in  favor  of  a  capitally  indicted  prisoner,  is  in  Holiday, 
page  213.  Lord  Mansfield  recommended  to  the  jury  to  find  the  value  of  a 
gold  trinket,  which  the  prisoner  at  the  bar  had  stolen,  under  forty  shil- 
lings; for  on  this  depended  his  life.  The  prosecutor  exclaimed:  "Why, 
my  lord,  the  fashion  alone  costs  me  more  than  double  the  sum!  " 

Mansfield :  "  That  may  be,  friend,  yet  God  forbid  that  we  should  hang  a 
man  for  fashion's  sake!  " 

13  See  especially  chap.  VI.,  pp.  210-263,  and  chap.  XI.,  pp.  334-350,  of  Political  Ethics 
(3d  ed.),hy  Dr.  Woolsey.    Phila.    1875.  — Ed. 


HERMKNEUTIC8.  129 

close  interpretation  and  construction.  Most  laws  lose  in 
their  protective  power,  in  the  common  intercourse  of  men, 
(which  is  the  most  important,  because  of  daily  and  hourly 
occurrence,)  according  as  they  are  loosely  interpreted. 
Several  surprising  decisions  of  the  English  courts  exist, 
which  were,  indeed,  the  consequence  of  an  apparently 
literal  interpretation.  Verdicts,  even,  are  not  wanting 
which  evidently  defeated  the  object  of  the  law,  in  conse- 
quence of  adhering  to  its  mere  letter  ;  yet  I  do  not  hesitate 
to  avow  my  firm  belief  that  England  owes  her  civil  liberty 
and  that  civic  spirit,  so  common  in  the  whole  country, 
compared  to  many  others,  to  no  circumstance  in  a  higher 
degree  than  to  the  habitually  close  construction  of  her 
laws.  On  the  other  hand,  the  laws  of  the  European 
continent  were,  for  a  long  time,  loosely  interpreted,  and 
construed  according  to  the  effects  and  presumed  motives 
of  the  legislator,  &c,  whenever  there  was  a  question  of 
right  between  the  individual  and  those  who  possessed  the 
power,  or  the  same  law  was  differently  interpreted  or 
different  occasions. 

The  result  of  our  considerations  then  will  be,  that  we 
ought  to  adhere  to  close  construction,  as  long  as  we  can  ; 
but  we  must  not  forget  that  the  "  letter  killeth,"  and  an 
enlarged  construction  becomes  necessary  when  the  relations 
of  things  enlarge  or  change.  We  ought  to  be  careful, 
however,  not  to  misjudge  our  own  times  ;  for  every  one 
who  is  desirous  of  justifying  an  extravagant  construction 
does  it  on  the  ground,  that  the  case  is  of  a  peculiar 
character  and  the  present  time  a  crisis.14     Every  demagogue, 


14  Although  this  w;i-  written  more  than  forty  years  ago,  it  might  almost  be  thought 
that  the  author's  remarkable  genius  for  politics  — in  the  higher  and  better  sense  of 

9 


130  HERMEXEUTICS. 

tyrant,  or  selfish  man,  in  public  or  private  life,  resorts  to 
this  argument,  to  palliate  unwarranted  acts  before  others, 
or  his  own  conscience.  However  delicate  this  subject  may 
be,  the  truth  of  what  has  been  said  is  nevertheless  apparent ; 
and,  to  be  safe  in  this  particular,  we  must  return  to  one  of 
the  first  principles,  that,  without  good  faith  and  conscien- 
tiousness, there  is  no  true  interpretation  or  construction 
possible. 

XIII.  Words  of  a  relative  or  of  a  generic  meaning  must 
be  taken  in  a  relative  or  expansive  sense,  if  the  character 
and  object  of  the  text  oblige  us  to  do  so,  but  not  if  they 
have  been  used  to  express  something  definite  or  absolute. 

If  the  term  "  genteel  education"  is  used  with  reference 
to  the  character  of  a  school  to  be  supported  with  certain 
foundations,  it  will  be  found  necessary  to  take  the 
expression  in  that  meaning  which  each  successive  period 
attaches  to  it.  If  the  direction,  however,  is  to  instruct  in 
certain  branches  which  have  been  enumerated,  and  it  were 
then  added,  and  "all  branches  called  a  genteel  education," 
there  might  be  reason  to  limit  the  meaning  to  that  of  the 

The  lawmakers  cannot  have  had  Mr.  Perkins's  steam- 
gun  in  view  specifically,  when  they  passed  the  law  relating 
to  murderous  arms,  previous  to  the  invention  of  the  steam- 


the  word  — had  enabled  him  to  foresee  the  most  threatening  dangers  of  the  present 
day.  At  every  election,  we  are  asked  by  one  party  or  the  other  to  do  something  that 
is  not  wise,  or  just,  or  prudent,  under  usual  circumstances,  on  the  ground  that  this 
particular  election  involves  a  crisis  in  the  history  of  the  country  which  must  be  met 
by  extraordinary  means.  And  if  the  wise  example  of  Washington  be  disregarded, 
and  the  country  deprived  of  the  safeguard  which  that  example  gave  it  in  the  limi- 
tation of  the  presidency  to  two  terms  by  the  dignified  retirement  of  the  chief 
magistrate  at  his  own  option,  it  will  undoubtedly  be  due  to  the  belief  which  has 
been  so  earnestly  instilled  into  men's  minds,  that  a  crisis  is  at  hand,  not  to  be  met 
by  ordir  ^ry  methods  or  men.  — Ed. 


HERMUNEUTICS.  131 

gun;  vet  tlic  word  "arms"  necessarily  includes  (his  species, 
because  the  steam-nun  agrees  in  all  essentials  with  the 
other  arms  specifically  mentioned  in  that  law. 

"A  suit  of  clothes"  means  (in  the  United  States) 
something  very  different  from  what  it  did  formerly,  or 
does  at  present,  in  other  countries.  A  judge,  in  the  -laic 
of  Kentucky,  decided  that  a  suit  of  clothes  to  he  given, 
according  to  stipulation,  to  an  apprentice  after  having 
served  his  time,  ought  to  be  worth  forty  dollars.  The 
case  given  in  the  foot-note  on  account  of  its  length, 
appears  of  great  interest  with  reference  to  the  topic  under 
discussion.* 


*  One  of  the  most  striking  cases  in  point  is  that  of  the  fellow-  of 
English  universities.  Before  a  graduate  can  become  a  fellow  he  must 
take  an  oath  that  he  has  not  otherwise  an  income  above  a  certain  amount, 
expressed  in  pounds  sterling.  Yet  there  are  many  who  have  more  and 
nevertheless  take  the  oath.  Bishop  Fleetwood  wrote  a  whole  volume  to 
prove  that  the  oath  might  be  taken,  because  this  condition  was  prescribed 
by  Henry  VI.,  when,  as  he  shows  from  the  prices  of  the  necessaries  of  life, 
that  prescribed  small  amount  was  worth  perhaps  twenty  times  what  it  is 
now,  when  in  short  a  pound  sterling  had  a  totally  differenl  I 

•  i in'  whole  title  of  the  book,  because  it  sln>\\>  ih 
Chronicon  Preciosum,  or  an  Account  of  English  Gold  and  Silver  Money; 
the  Price  of  Corn  and  other  Commodities,  and  of  Stipends,  Salaries, 
Wages,  Jointures,  Portions,  Daylabour  &c  in  England  for  Six  Hundred 
years  last  past:  Showing  from  the  Decrease  of  the  value  of  Money,  and 
from  the  Increase  of  the  Value  of  Corn  and  other  Commodities  &c,  That 
A  Fellow,  who  has  an  Estate  in  Land  of  Inheritance,  or  a  perpetual 
Pension  of  Five  Pounds  per  Annum  may  conscientiously  keep  his  Fellow- 
ship, and  ought  not  to  be  compelled  to  leave  the  same,  tlio'  the  Statutes 
of  his  College  (founded  between  the  years  14-iO  and  HGO)  did  then  vacate 
his  Fellowship  on  such  Condition.  By  Bishop  Fleetwood.  To  which  is 
added  An  Historical  Account  of  Coins,  illustrated  with  several  Plates  of 
Gold  and  Silver  Coins.     London  17-15.     (A  Copy  in  S.  C.  C.  Library.) 

The  rationale  of  the  whole  work  is  contained  in  the  first  chapter  and 


132  HERMEKEUTICS. 

It  has  been  considered  that  the  charter  of  Harvard 
University,  when  making  use  of  the  term  "  Christian  doc- 
trine," applies  as  well  to  Unitarians  as  Trinitarians  ;  though 
no  Unitarians  were  existing  in  New  England,  when  the 
charter  was  granted. 


the  conclusion.  In  the  former,  page  7,  the  author  says:  "I  do  affirm 
then,  with  the  best  judgment  I  have,  that  I  am  seriously  persuaded,  that, 
altho'  you  are  actually  possessed  of  an  estate  of  VI  pounds  per  An.  as 
Money  and  Things  go  now,  you  may  safely  take  that  Oath,  upon  Presump- 
tion that  VI  1.  now,  is  not  worth  what  V  1.  was  then,  when  that  Statute 
was  first  made.  Because  whosoever  swears,  swears  to  Things  that  are 
signified  by  Words  and  not  to  mere  Words:  when  a  word  signifies  the  same 
Thing  now,  in  effect,  which  it  signified  260  years  ago,  then  he  who  swears 
to  words,  swears  to  things  they  signify ;  but  when  different  Things  are 
signified  by  the  same  Word,  then  he  who  knows  that  Difference  of  Things, 
cannot  help  giving  such  Word  its  proper  and  intended  Signification." 

And  in  the  Conclusion,  page  136 :  "So  that  30  Pound  now,  would  be  no 
more  than  equivalent  to  V  1.  in  the  Eeign  of  H.  VI." 

And  on  page  137:  "Sir  H.  Spelman  (a  very  competent  Judge  and 
Estimator  of  these  matters)  complains,  That  the  Laws  have  not  sufficient 
Regard  to  different  Price  of  Things,  when  they  condemn  People  to  death 
for  stealing  Things  to  the  Value  of  twelve  Pence;  for  tho'  that  is  according 
to  Law,  yet  that  Law  was  made  when  twelve  Pence  would  have  purchased 
as  much  as  you  must  now-a-days  give  20,  30,  nay  40  s.  for.  And  he 
instances  in  Quarter  of  Wheat,  which  in  the  Assise  of  Bread,  51  H.  III.  was 
rated  at  twelve  Pence,  but,  in  his  Time,  was  often  sold  for  40  s.  and 
upwards.  'Tis  certain,  the  Laws  do  never  condemn  any  One  to  death, 
for  stealing  to  the  Value  of  one,  no,  nor  three  or  four  shillings:  But  'tis 
certain  that  many  die  for  stealing  Things  of  less  Value  than  20  shillings. 
And  therefore,  I  think,  I  have  very  sufficient  Reason  (not  to  determine 
but)  to  conjecture,  that  5  1.  260  years  ago,  was  equivalent  to  2S  or  30  1. 
now.  And  consequently,  that  he  who  has  an  Estate  of  Inheritance,  or  a 
Perpetual  Pension,  of  that  Value  now-a-days,  may  as  honestly  hold  a 
Fellowship  with  it,  as  he,  who  lived  260  years  ago,  might  have  held  it, 
with  99  s.per  Ann.'''' 

The  italicizing  in  this  note  is  in  the  original  work  of  the  book  of 
Fleetwood. 


HEBMENEUTIC8.  133 

It  is  necessary  to  pay  attention  to  three  points  in  ques- 
tions of  this  character  :  — 

First.  Did  the  uttereruse  the  doubtful  word  in  a  definite, 
absolute,  or  circumscribed  meaning;  or  did  he  make  use 
of  the  word  as  a  relative,  generic,  or  expansive  term. 

Secondly,  if  the  latter  be  the  case,  what  did  the  utterer 
consider  as  an  absolute  and  definite  characteristic,  or  as  a 
generic  sign:  what  maybe  considered  in  that  which  is 
designated  by  a  certain  word,  as  fixed  and  unalterable,  and 
what  as  variable,  expansible,  or  cflntractible,  according  to 
the  change  of  circumstances  and  relations  between  things 
and  men. 

Thirdly,  is  the  subject  to  which  the  text  relates  of  that 
elementary,  vital,  and  absorbing  importance  to  society, 
that  every  other  interest,  or  consideration,  must  yield  ;  so 
that  in  construing  the  difficult  parts  of  the  text,  we  are 
obliged  to  regulate  our  decision  rather  by  the  meaning 
which  the  words  would  now  have,  taken  in  connection  with 
things  and  circumstances  as  they  now  exist,  than  by  the 
known  meaning  which  the  utterer  attached  to  them,  in 
connection  with  the  then  existing  relations.  Here  the 
difference  between  interpretation  and  construction  is  evident. 

The  many  foundations  which  were  made,  before  the  time 
of  the  Reformation,  for  the  support  of  clergymen,  or  for  the 
diffusion  of  Christianity  by  other  means,  were  construed, 
by  the  protestants,  to  mean,  that  the  pious  founders  were 
anxious  to  diffuse  true  religion,  and  that  at  the  time  of  the 
Reformation  they  would  have  meant  biblical  or  evangelical 
Christianity,  or  whatever  else  it  may  be  called.  Interpre- 
tation cannot  but  acknowledge  that  the  founders  had  dis- 
tinctly and  positively  the  Roman  apostolic  catholic  religion 


134  HERMENEUTICS. 

in  view.  They  neither  thought  of  protestantism,  nor  would 
they  have  viewed  its  doctrines,  at  their  time,  with  any  thing 
else  than  aversion.  Yet  religion  is  too  important  to  allow 
any  generation  to  forestall  every  future  change. 

The  conversion  into  school  funds,  of  funds  left  for  the 
reading  of  masses  for  the  dead,  was  not  in  consequence  of 
any  construction,  transcendant  or  otherwise.  This  was  an 
absolute  change,  which  could  only  take  place  in  consequence 
of  high  legislative  action.  When,  on  the  other  hand, 
individuals  who  united  ^n  their  capacity  the  character  of 
priest  and  sovereign,  and  who  had  been  elected  on  the  very 
ground  that  they  were  catholic  priests,  and,  consequently, 
not  married,  embraced  protestantism  without  resigning, 
but,  on  the  contrary,  declared  themselves  hereditary 
princes,  after  having  married,  it  was  revolution,  and  can 
be  judged  of  only  on  that  ground.* 

XIV.  Whenever  a  decision  between  the  powerful  and 
the  weak  depends  upon  our  construction,  the  benefit  of  the 
doubt  is  given  to  the  weak.  Of  course  our  construction 
must  not  defeat  the  general  object  of  the  text. 

This  principle  has  always  been  acknowledged,  though  it 
has  not  always  prevailed.  When  the  elector  of  Saxony 
demanded  that  Luther  should  be  called  to  the  diet,  assem- 
bled at  Worms,  and  be  heard,  the  elector  urged  that  it  is 


*  Prince  Albert  of  Prussia,  the  master  of  the  Teutonic  order,  thus  made 
himself  Duke  of  Prussia  by  revolution  alone ;  and  it  was  revolution,  which 
Luther  advised  some  prelates  to  resort  to,  when  he  called  upon  them  to 
profess  protestantism  and  declare  themselves  independent  sovereigns. 
No  construction  whatever  could  arrive  at  this  decision ;  but  revolutions 
become  at  times  indispensable ;  this,  however,  is  not  the  place  to  discuss 
the  subject. 


HEEMENEUTIC8.  135 

customary  according    to    German    liberty,   to    prefer,   in 
doubtful  cases,  the  lenient  one.* 

XV.  The  general  and  superior  object  cannot  be  defeated 
by  a  less  general  and  inferior  direction  ;  and,  in  general, 
the  higher  prevails  over  the  lower,  the  principle  over  a 
specific  direction.15 

Pufendorf  gives,  in  illustrating  another  rule,  however, 
the  instance,  that  there  exist  a  law  that  no  citizen  shall 
carry  arms  on  festivals  ;  another  to  assemble  with  arms,  as 
soon  as  the  alarm  bell  is  sounded.  A  hostile  fleet  appears 
on  Sunday  otf  the  harbor,  the  bells  are  rung,  what  has  the 
citizen  to  do?  He  has  to  go  armed  of  course,  because  the 
first  mentioned  law  was  given  to  maintain  peace  and  safety  ; 
the  second,  to  save  the  city.  The  repelling  of  the  enemy, 
and  the  freedom  of  the  city,  is  the  most  important.  It 
does  not  appear  to  me,  that  the  citizen  ought  to  go  armed 
on  Sunday,  "  because  the  second  law  forms  an  exception  to 
the  first,"  in  this  case  if  it  does,  it  is  only  because  the 
exception  is  founded  upon  a  more  general  principle  ;  if  it 
were  not,  it  could  not  possibly  have  the  power  of  over- 
coming the  other  law,  which  prohibits  going  armed  on 
festival  days. 

If  the  exceptions  are  specified,  or  if  we  can  give  to  a  text 
the  character  of  an  exception  to  the  general,  the  exception 
of  course  prevails  as  we  have  stated. 

XVI.  In  order  to  give  the  proper  meaning  to  each  word 


Palavicinus,  I.  2G,  5. 


16  But  this  must  not  be  confounded  with  the  very  different  rule  governing  the 
relations  of  general  and  special  /<urs,  in  which  the  order  is  exactly  reversed,  and  llie 
more  specific  prevails  over  the  more  general.  —  Ed. 


136  HERMENEUTICS. 

or  sentence,  we  ousrht  to  consider  the  whole  text  or  discourse 
together  ;  without  this,  we  can  never  arrive  at  a  fair  inter- 
pretation or  construction. 

XVII.  Recapitulating  the  general  principles  of  con- 
struction, we  shall  find  the  following  to  be  most  essential : 

1.  All  principles  of  interpretation,  if  at  all  applicable  to 
construction,  are  valid  for  the  latter. 

2.  The  main  guide  of  construction  is  analogy,  or  rather, 
reasoning  by  parallelism. 

3.  The  aim  and  object  of  an  instrument,  law,  &c,  are 
essential,  if  distinctly  known,  in  construing  them. 

4.  So  also  may  be  the  causes  of  a  law. 

5.  No  text  imposing  obligations  is  understood  to  demand 
impossible  things. 

6.  Privileges,  or  favors,  are  to  be  construed  so  as  to  be 
least  injurious  to  the  non-privileged  or  unfavored. 

7.  The  more  the  text  partakes  of  the  nature  of  a  compact, 
or  solemn  agreement,  the  closer  ought  to  be  its  construction. 

8.  A  text  imposing  a  performance,  expresses  the  mini- 
mum, if  the  performance  is  a  sacrifice  to  the  performer;  the 
maximum,  if  it  involves  a  sacrifice  or  sufferance  on  the  side 
of  the  other  party. 

9.  The  construction  ought  to  harmonize  with  the  sub- 
stance and  general  spirit  of  the  text. 

10.  The  effects,  which  would  result  from  one  or  the  other 
construction,  may  guide  us  in  deciding  which  construction 
we  ought  to  adopt. 

11.  The  older  a  law,  or  any  text  containing  regulations 
of  our  actions,  though  given  long  ago,  the  more  extensive 
the  construction  must  be  in  certain  cases. 


HERMENEUTICS.  1  3  7 

12.  Yet   nothing   contributes    more    to    the    substantial 

protection   of  individual    liberty,   than    a    habitually   close 
interpret al ion  and  construction. 

13.  It  is  important  to  ascertain,  whether  words  were  used 
in  a  definite,  absolute,  and  circumscribed  meaning,  or  in  a 
generic,  relative,  or  expansive  character. 

14.  Let  the  weak  have  the  benefit  of  a  doubt,  without 
defeating  the  general  object  of  the  law.  Let  mercy  prevail 
it'  there  be  a  real  doubt. 

15.  A  consideration  of  the  entire  text  or  discourse  is 
necessary,  in  order  to  construe  fairly  and  faithfully. 

16.  Above  all,  be  faithful  in  all  construction.  Construc- 
tion is  the  building  up  with  given  elements,  not  the  forcing 
of  extraneous  matter  into  a  text.16 


16  See  Additional  Note  I,  on  the  value  of  Formal  Rules  of  Interpretation.  —  Ed. 


CHAPTER    VI. 

Hermeneutic  Eules  respecting  detached  spoken  Words  or  Sentences  — 
Conversation  — Hearsay  — In  judicial  Procedures  —  Letters,  Journals, 
Private  Notes  —  Speeches  —  Pamphlets  —  Orders,  Directions,  &c,  of 
a  passing  Nature  —  Contracts,  Deeds,  Wills,  &c  — Laws  must  at  Times 
be  interpreted  or  construed  —  Hermeneutic  Rules  respecting  Laws  — 
Constitutions  —  Constitutions  are  Laws  and  Guarantees  —  Various 
Constitutions  —  Rules  of  Constitutional  Hermoneutics  —  The  Veto 
and  Pardoning  Privilege  —  International  Treaties. 

I.  If  we  apply  these  general  rules  of  interpretation  and 
construction  to  the  various  subjects  which,  in  politics  and 
law,  may  form  the  text,  some  particular  rules,  peculiar  to 
these  respective  subjects  or  of  especial  importance  respect- 
ing one  or  the  other,  will  be  found. 

II.  Detached  spoken  words  or  sentences,  not  pronounced 
on  solemn  occasions,  or  in  public.  Merely  spoken  words 
may  be  of  the  greatest  importance  ;  for  instance,  in  criminal 
cases.  Every  thing  may  depend  upon  a  proper  under- 
standing of  some  words  uttered  by  a  person  ;  or  they  may 
possess  very  high  political  importance  ;  for  instance,  the 
answer  which  Queen  Elizabeth  gave,  when  asked  whom  she 
designated  as  the  fittest  person  to  succeed  her.1 

The  more  the  discourse,  in  which  the  words  in  question 


i  The  explicit  declaration,  on  her  death  bed,  ascribed  to  her  by  Hume  and  most 
other  writers,  that  her  kinsman,  the  King  of  Scots,  should  succeed  her,  is  not  con- 
firmed by  Carey,  who  was  there  at  the  time.  "  She  was  speechless  when  the  council 
proposed  the  King  of  Scots  to  succeed  her,  but  put  her  hand  to  her  head  as  if  in 
token  of  approbation."  Earl  of  Monmouth's  Memoirs,  p.  176.  But  her  uniform 
conduct  shows  her  intentions.  Hallam's  Constitutional  History  of  England,  Vol. 
I.,  p.  392.  — ED. 

(138) 


IIKKMENEUTICS.  139 

were  uttered,  assumes  the  character  of  conversation,  the 
less  importance  vve  can  attach  to  them  ;  for,  to  understa 
them  entirely,  we  ought  to  know  the  accent,  the  gesture, 
the  expression  of  the  face,  which  accompanied  them,  or  the 
whole  spirit  of  the  conversation,  which  gave  rise  to  them. 
This  spirit  of  the  conversation,  or  the  expression  of  the 
features  during  the  utterance,  may  even  indicate,  l>v  way  of 
jest  or  irony,  that  the  very  contrary  was  meant  from  wh.il 
the  words  would  directly  intimate.  The  accent  in  speaking 
and  that  which  prevails  as  the  general  idea  in  the  minds 
of  utterer  and  hearer,  are,  in  all  conversations  or  spoken 
words,  not  only  sufficient  substitutes  for  exactly  gram- 
matical use  of  pronouns  and  relatives,  but  in  many  cases, 
better  and  clearer.  Written  words  allow  of  calm  perusal 
and  considerate  application  of  each  pronoun  to  its  proper 
noun.  Wherever  tyranny  sends  out  her  listening  informers 
it  will  be  found  that  many  people  are  sentenced,  because 
not  sufficient  or  no  regard  is  paid  to  these  concomitants  of 
all  conversational  intercourse.2 

All  these  accompaniments  of  oral  intercourse  are,  how- 
ever, evanescent;  the  words  alone  are  reported,  and  these 
undergo  considerable  changes  with  each  new  transmission. 
The  frailty  of  tradition  shows  itself  nowhere  more  strongly 
than  in  hear-say,  and  reports  are  never  more  to  be  dreaded 
than  when,  from  the  nature  of  the  subject  they  are  trans- 
mitted in  secret.     Woe  to  the   man  who   lends  his  ear  to 


-  However  hateful  the  reports  of  spies  may  be,  however  cruel  the  sentences  of 
tyranny,  it  may  well  be  doubted  whether  these  have  occasioned  so  much  unhappi- 
ness  to  the  human  race  as  the  careless  <>r  spiteful  repetition  ami  misconstruction 
nf  words  in  private  life.  All  that  the  author  has  -aid  of  the  difficulty  of  understand- 
ing a  repeated  conversation  aright  applies  with  peculiar  force  in  this  domain  of 
private  gossip,  ami  has  a  lesson  which  to  the  majority  of  us  i.-  far  more  necessary 
than  protection  against  tyrannical  misconstruction.  —  Ed. 


140  HERMENEUTICS. 

whispers  !  Woe  to  him  who  is  influenced  by  what  is  com- 
monly called  talk,  be  this  that  which  is  ultimately  trans- 
mitted orally,  or  in  newspapers  or  memoirs.  We  may  lay 
it  down  then,  as  a  rule,  to  discard  such  reports  altogether, 
unless  they  have  reference  to  facts,  which  facts  we  have  it 
in  our  power  to  ascertain  otherwise.  It  is  a  very  simple 
rule,  yet  daily  forgotten,  in  common  intercourse,  in  news- 
paper debates,  in  politics,  be  they  of  a  popular  sort  or 
relating  to  courts,  in  judicial  trials,  and  in  the  study  of 
history.  If  you  peruse  a  file  of  papers  issued  during  the 
wars  between  England  and  France  under  Napoleon,  you  will 
find  striking  and  incredible  proofs  of  the  remark  just  made.3 
If  the  above-mentioned  rule  were  strictly  adhered  to, 
it  would  give  a  death-blow,  at  once,  to  all  systems  of 
espionage. 

In  judging  by  hear-say,  people  are  always  too  apt  to 
break  two  necessary  and  obvious  rules  ;  the  one  furnished 
by  criticism,  the  other  by  common  morality.  The  first  has 
been  mentioned  already,  namely,  inquire  first  of  all,  whether 
the  text  be  genuine.  Were  the  words  really  uttered? 
Were  they  uttered  precisely?  Were  they  not  uttered 
under  circumstances  which  made  them  convey  an  entirely 
different  meaning  from  what  they  seem  to  express  in 
their  detached  form,  as  reported?  The  second,  furnished 
by  common  morality,  is,  that  we  should  not  studiously 
endeavor  to  make  the  worst  of  the  words  or  actions  of 
our  neighbors.  Plain  justice  demands  that  we  should 
take  them  in  the  spirit  in  which  they  were  meant,  and  that 
we  should  endeavor  to  find  out  that  spirit;  plain  charity 


3  The  reader  of  the  present  day  need  hardly  go  across  the  ocean,  or  so  far  back, 
for  illustrations  which  he  will  find  in  great  abundance  in  our  own  Nation.  — Ed. 


KERMENEUTICS.  Ill 

demands  that  we  should  give  full  weight  to  a  possible 
good  interpretation,  which  charity  becomes  but  justice, 
considering  that  all  of  us  stand  in  equal  need  of  it.  Now, 
read  the  papers,  especially  if  any  question  of  vital  interest 
is  pending,  be  it  in  politics  or  religion,  or  any  other  sphere, 
and  it  will  be  seen  whether  it  is  not  worth  while  to  mention 
two  rules,  which,  in  themselves  seem  so  plain,  that  no  one 
might  be  supposed  to  dissent  from  them. 

In  judicial  procedures,  it  will  probably  be  found  a  safe 
rule  to  disregard  and  discard,  at  once,  any  report  of  words, 
which  imply  the  injury  of  a  person,  and,  which  at  the  same 
time,  are  vague.4  If,  however,  the  adoption  of  the  words 
injures  one  party,  and  the  discarding,  another,  it  is  neces- 
sary, of  course,  to  proceed  in  good  faith  upon  all  the  sound 
rules  of  interpretation  and  construction.  This  is  frequently 
of  great  importance  respecting  the  last  declarations  of 
persons  on  their  death-bed.  In  these  cases,  good  faith 
obliges  us,  not  to  found  any  argument  upon  the  nice  posi- 
tion of  words,  or  the  peculiar  reference  which  certain 
pronouns  may  have ;  because,  as  has  been  alluded  to 
already,  even  in,  common  converse,  we  refer  pronouns 
much  more  to  the  logical  subject  of  the  sentence,  than 
to  the  grammatical,  because  the  former  is  uppermost  in 
our  mind.     Every  one  who  has  ever  written  for  the  press 


«  This  seems  hardly  consistent  with  the  author's  own  theory  of  interpretation. 
It  follows  the  common  one,  which  confines  its  use  to  cases  "f  particnlar  difficulty. 
Yet,  even  thus,  the  rule  he  gives  is  too  exclusive.  Many  oi  the  most  atrocious  libels 
and  slanders  (as  in  the  familiar  case  where  a  crime  was  charged  by  Baying,  sarcas- 
tically, that  the  party  did  not  commit  it)  are  couched  in  vague  terms,  which  require 
interpretation,  and  that  the  interpretation  of  mere  spoken  words,  to  the  injury  of  a 
party:  and  yet  the  report  of  them  could  no1  be  discarded  without  the  grossest  failure 
of  justice.  But,  as  a  rule  of  private  conduct  upon  BUCh  reports,  the  author'-  remark 
and  the  entire  passage  are  not  only  just,  but  animated  by  a  uoble  and  lofty  spirit  — 
Ed. 


142  HERMENEUTICS. 

will  have  found  that  he  has  had  to  change,  after  a  careful 
perusal  of  what  he  wrote  with  vivid  interest,  these  pro- 
nouns, which  in  the  original  draft  related  to  the  general 
subject,  rather  than  to  the  subject  of  the  specific  sentence. 
The  same  happens  with  the  singular  a*iJ  plural  number  of 
nouns  and  verbs.5 

There  is  a  remarkable  instance,  illustrating  this  subject, 
on  record,  in  the  trial  of  Earl  Strafford  for  high  treason. 
I  mean  the  deposition  of  Sir  Henry  Vane  respecting  the 
notes  which  his  father  had  taken  of  a  debate  at  the  council- 
table  of  Charles  I.  In  these,  Strafford  was  made  to  say, 
among  other  things  :  "And  you  (the  king)  have  an  army 
in  Ireland,  that  you  may  employ  to  reduce  this  kingdom  to 
obedience  ;  for  I  am  confident  the  Scots  cannot  hold  out 
five  months;"  upon  which  the  question  arose,  whether 
Strafford  used  this,  that,  or  their,  and  whether  this  meant 
England  or  Scotland.* 

•III.     Letters,  Journals,  Private  Notes,  &c. 

This  is  not  the  place  to  discuss  the  outrage  of  the 
unauthorized  publishing  of  private  letters,  or  the  crime  of 
unauthorized  opening  them.  A  letter  thief,  as  Luther  calls 
every  one,  officer  or  not,  who  breaks  the  seal  of  a  letter  not 
addressed  to  him,  is  as  bad,  and,  at  times,  worse,  than  a 


*  See  State  Trials,  vol.  III.  p.  1442.  Brodie's  History  of  the  British 
Empire,  Edinb.  1822,  vol.  III.  p.  91.  Also  Lingard,  vol.  X.  chap.  II. 
Lingarcl,  however,  is  not  important  as  to  this  portion  of  British  history. 

s  A  striking  illustration  of  this  remark  will  be  found  in  our  author's  own  text,  a 
few  pages  further  on,  chap.  6,  §  4,  p.  4:  "Yet  the  same  word  does  not  always  mean 
the  same  in  the  same  discourse  or  text.  This  would,  in  fact,  militate  with  the 
important  rule  that  we  are  to  take  words  in  their  natural  sense,"  etc.  The  pronoun 
"  This,"  lias  no  expressed  antecedent.  It  refers  to  a  supposed  rule  denied  in  the 
preceding  sentence.  — Ed. 


IIERMKNKl  TICS.  143 

common  thief,  according  to  the  same  authority;  and  Lord 
Falkland,  even  in  those  troubled  times  in  which  he  lived, 
declared  the  opener  of  letters  to  be  the  worst  of  spies. 
Clarendon,  VI.  235. 

The  unauthorized  opening  of  private  letters,  or  perusing 
notes  for  private  use  only,  is  a  most  immoral  act,  well 
known  and  felt  by  every  "letter  thief;"  for,  who  will 
boldly  and  without  blushing,  acknowledge  it?  It  is  break- 
ing into  one  of  the  most  sacred  sanctuaries  of  humanity. 
Nearly  the  same  rule  applies  to  the  unauthorized  publication 
of  private  letters,  even  though  they  may  have  been  directed 
to  us.  Letters  do  not  become  absolutely  ours,  that  is,  we 
are  not  absolutely  free  to  dispose  of  their  contents,  although 
the  letters  be  directed  to  us.  The  American  law  acknowl- 
edges this  ;  it  has  been  decided,  that  the  law,  that  no  person 
has  the  right  of  publishing  any  thing  of  another's  without  a 
written  order  or  permission  of  the  writer,  is  applicable  to 
letters  ;  the  property  of  them  remains  in  the  letter-writer. 

Niebuhr,  the  historian,  expressed  himself  unqualifiedly 
against  the  publication  of  private  letters,  the  authors  of 
which  are  defunct,  because  he  considered  it  unjust  toward 
those  who  could  no  longer  explain,  besides  that  it  is, 
according  to  him,  unfair  in  a  high  degree  to  invade  the 
privacy   of    any   man.*      Cicero    expresses    himself    very 


*  The  publication  of  Humboldt's  letters  to  Varnhagcn,  even  with  the 
apparent  consent  or  desire  of  their  writer,  furnishes  one  of  the  most 
striking  illustrations,  how  unfair  is  the  indiscriminate  publication  of 
private  correspondence,  and  especially  of  that  which  approaches  to 
neighborly  converse.  Every  reflecting  reader  of  these  letters  has  prob- 
ably asked  himself:  How,  if  all  our  private  and  friendly  conversations 
were  published  and  stabilitated,  as  it  were? 


144  HERMENEUTICS. 

strongly  against  divulging  private  letters.  "At  etiam 
literas,"  he  exclaims  against  Anthony,  "  quas  me  sibi 
misisse  diceret,  recitavit,  homo  et  humanitatis  expers  et 
vitse  communis  ignarus.  Quis  enim  unquam,  qui  paululum 
modo  bonorum  consuetadinem  nusset,  literas  ad  se  ab  amico 
missas,  offensione  aliqua  interposita,  in  medium  protulit, 
palamque  recitavit?  Quid  est  aliud  tollere  e  vita  vitse 
absentium?"  — "  Quam  multa  joca  solent  esse  in  epis- 
tolis,  quas  prolata  si  sint  inepta  videantur?  quam  multa 
seria,  neque  tamen  ullo  modo  divulganda !  "  Cic.  Phil. 
II.  3. 

As  to  the  law  on  the  publication  of  letters,  it  was  settled 
to  be  unlawful,  by  Lord  Hardwicke,  on  June  5,  1741,  in 
the  case  of  Pope  v.  Curll,  which  was  cited  by  Lord  Mans- 
field in  the  famous  case  of  Millar  v.  Taylor,  respecting 
unauthorized  printing  of  Thomson's  Seasons.*6 

Still,  letters  are  not  unfrequently  published,  sometimes 
with,  sometimes  without  the  consent  of  the  author,  and  it 
becomes,  not  unfrequently,  necessary  for  the  citizen  to 
form  his  opinion  upon  them.     In  historical  and  political 


*  4  Burr.  2303.  Holiday  page  216.  See  all  the  authorities  and  legal 
argument  at  the  end  of  Earl  Dudley's  Letters,  by  Bp.  of  Llandaff .  Lond. 
1841. 

6  Upon  the  right  to  publish  private  letters,  the  cases  will  he  found  collected  in  2 
Kent's  Comm.  3S0,  and  notes,  especially  note  1,  by  the  last  editor,  Mr.  Holmes.  2 
Story's  Eq.  Jur.,  §§  944-949.  By  the  common  law,  a  party  had  a  property  in  his  own 
manuscripts,  and  this  is  not  lost  by  sending  them  to  another  in  the  form  of  letters. 
The  author  of  letters  of  any  kind  has  a  property  and  an  exclusive  copyright  therein, 
unless  he  unequivocally  dedicate  them  to  the  public,  or  to  some  private  person.  No 
one  has  a  right  to  publish  such  letters  without  his  consent,  unless  such  publication 
be  required  to  establish  a  personal  right  or  to  vindicate  character.  Bartlett  v. 
Crittenden,  5  McLean,  32;  4  McLean,  300.  One  who  uses  his  manuscripts  for  the 
purpose  of  instructing  others,  does  not  thereby  abandon  them  to  the  public;  nor 
does  he  do  so  by  permitting  his  pupils  to  take  copies.  Ibid;  Woolsey  v.  Judd,  4 
Duer,  379.  — Ed. 


HERMENKUTIC8.  145 

memoirs,  letters  become  equally  often  subjects  of  great 
importance. 

The  only  safe  and  just  rule,  for  the  interpretation  and 
construction  of  private  letters,  is,  that  we  discard  every 
thing  which  is  not  a  bare  statement  of  fact,  or  which  does 
not  carry  along  with  it  irresistible  evidence  of  truth.  Even 
the  statement  of  lads  ought  to  be  given  so  as  not  to 
require  any  completion,  on  the  side  of  the  receiver  of  the 
letter,  such  as  the  letter-writer  knew  would  be  added 
during  the  perusal  by  the  person  addressed.  As  to  every 
thing  else,  the  language  of  a  private  letter  is  so  entirely 
founded  upon  the  relation  between  its  writer  and  the 
receiver,  their  acquaintance  with  each  other's  character, 
use  of  words,  nay,  sometimes  with  the  very  accent  with 
which  the  writer  is  in  the  habit  of  pronouncing  certain 
sentiments  or  words,  and  upon  a  knowledge  of  so  many 
details,  which,  though  unmentioned,  serve  to  give  the 
right  meaning  to  the  words,  that  a  letter,  destined  to 
remain  private,  frequently  changes  its  whole  character  as 
soon  as  it  is  made  public,  and  when  a  third  person 
attempts  to  interpret  whatever  can  be  doubtful  or  ambig- 
uous. The  relation  between  two  persons  forms  a  key  to 
their  correspondence,  for  which  nothing  else  can  be 
substituted.  There  is  a  private  usus  loquendi  between 
friends,  husband  and  wife,  members  of  a  family,  &c, 
which  cannot  be  known  by  others. 

Let  it  be  repeated  once  more,  for,  unfortunately,  it  is 
but  too  important,  that  we  ought  to  be  fairly  convinced 
of  the  genuineness  of  the  letter  in  question.  We  cannot 
be  too  careful,  in  times  of  great  excitement,  to  act  upon 
this  principle  ;  for  forged  letters  will  often  be  given  to  the 

10 


146  HERMEXELTICS. 

public,  and  though  the  forger  is  sure  that  the  forgery  must 
be  discovered,  he  perhaps  calculates  only  upon  the  next 
effect,  and  does  not  care  whether  the  forgery  becomes 
known  at  a  later  period  or  not.7 

The  rules  of  epistolary  hermeneutics  apply  still  more 
forcibly  to  private  journals.  A  journal  consists  of  a  series 
of  memoranda  addressed  to  one's  self,  and  it  is  impossible 
for  any  other  person  to  discover  the  precise  meaning  of 
any  ambiguous  expression.  A  private  journal  withdraws 
itself  entirely  from  the  common  rules  of  criticism  and 
interpretation:  sometimes,  from  the  very  rules  of  logic, 
for  a  thousand  diverse  and  indiscoverable  motives  may 
have  prompted  the  writer  to  have  expressed  himself  thus 
and  not  otherwise.  The  words  themselves  receive,  not 
unfrequently,  a  meaning,  different  from  the  ordinary,  yet 
one  well  understood  by  the  writer  who  addressed  them  to 
himself,  but  not  by  others. 

These  remarks  acquire  still  greater  importance,  whenever 
letters  and  journals  are  admitted  as  evidence  in  legal 
transactions.  Private  journals  and  memoranda,  or  any 
writing  if  they  have  never  been  communicated  to  any 
one,  are  now  justly  excluded  in  most  countries  from  the 
courts   of  justice.     It  was  not  always  the  case :  the  trial 


i  A  very  curious  and  unusual  forgery  was  published  in  the  year  1875,  in  the 
columns  cf  the  Chicago  Tribune,  soon  after  the  noted  failure  of  the  Cook  County 
Bank.  A  firm  of  private  bankers  in  New  York,  to  which  the  president  of  that 
institution  belonged,  failed  also;  and  its  members  got  into  litigation  among  them- 
selves. That  paper  published  an  article  of  several  columns,  containing  what 
purported  to  be  extracts  from  a  private  journal  of  the  president,  betraying  a  great 
many  secrets  of  his  business  career.  It  turned  out  that  the  extracts  were  mostly, 
if  not  entirely,  authentic,  in  so  far  that  they  were  written  by  him;  but,  instead  of 
coming  from  a  journal,  they  were  extracts  from  the  confidential  letters  which  he 
had  written  to  his  partner.  The  case  illustrates,  with  unusual  force,  the  author's 
remark  as  to  the  "  next  effect"  sought  by  a  forgery,  which  must  be  exposed  at  a 
later  period.  See  also  Note  3,  ante  p.  74,  as  to  the  forged  alteration  of  President 
grant's  Des  Moines  speech.—  Er>. 


HERMENEUTIC8.  1-47 

of  Algernon  Sidney  affords  a  well  known  instance.  No 
one,  who  has  not  himself  undergone  trials  founded  upon 
letters,  memoranda,  and  journals,  and  been  called  upon 
to  explain  doubtful  or  suspicious  passages,  cau  possibly 
form  an  idea  of  the  difficulty,  not  only  for  any  stranger 
to  arrive  at  their  true  sense,  but  for  the  writer  himself  to 
place  others  in  that  precise  point  of  view  from  which  a 
particular  piece  of  this  class  of  writings  can  be  rightly 
understood.8 

The  same  may  be  said  of  any  manuscript  remarks  which 
may  have  been  kept  in  the  possession  of  a  person,  without 
the  intention  of  communicating  them  to  others.  Those 
who  are  not  in  the  habit  of  noting  down  their  thoughts- 
suggested  by  occurrences  of  the  day,  do  not  know  that 
such  ideas  may  be  written  down  with  a  positiveness  in 
expression,  which  the  writer  is  far  from  desiring  to  use  in 
communicating  them  to  others,  or  he  may  have  set  them 
down  as  if  used  by  an  opponent  against  himself,  without 
giving  his  sanction  to  the  whole,  or  even  to  any  part  of  it. 
As  to  the  legal  point  of  view,  that  which  has  never  left  my 
desk  has  never  left  my  breast;  remarks,  before  being 
communicated  to  any  one,  are,  though  written,  lea-ally, 
but  thoughts.  Such,  at  least,  is  the  honest  principle 
which  ought  to  be  adopted  every  where.  If  they  are 
notes  of  facts,  they  may  of  course  serve  to  bring  out  the 
truth,  like  any  thing  else  which  may  more  or  less  serve 
to  shed  light  on  an  important  point. 


8  A  more  striking  illustration  of  the  author's  remark  could  hardly  be  invented  by 
the  most  fertile  imagination  than  that  which  will  be  found  in  the  noted  case  of 
Tiltontn  Beecher.  The  examination  of  the  defendant  in  that  case  upon  the  meaning 
of  his  own  written  words  deserves  notice  as  an  unequalled  display  of  intellectual 
calisthenics.  — Ed. 


148  HERMENEUTICS. 

IY.  Speeches.  Speeches  can  be  only  correctly  inter- 
preted or  construed,  by  paying  attention  to  the  following 
points. 

1.  To  consider  all  the  circumstances  under  which  they 
were  delivered;  and,  among  these  again,  we  ought  to 
weigh  well  the  general  character  of  the  meeting,  the 
capacity  of  those  to  whom  the  speech  was  addressed, 
their  number,  and  whether  they  were  constituents,  fellow 
representatives,  or  other  citizens,  each  of  which  gives  a 
very  different  character  to  a  speech ;  and  in  what  situation 
the  speaker  uttered  it. 

2.  Whether  it  bears  the  character  of  having  been  pre- 
pared before-hand,  or  of  being  the  sudden  effusion  of  the 
moment ;  whether  the  utterer  charges,  or  has  been  charged, 
provokes,  or  has  been  provoked. 

3.  To  the  fact  that,  in  general,  a  speaker  has  to  use  more 
impressive  and  emphatic  language  than  a  writer,  because 
he  has  to  attract  and  rivet  attention,  while  the  reader  does 
not  take  up  a  book  unless  he  is  disposed  to  direct  his 
attention  to  the  work,  and  because  a  reader  can  weigh  at 
leisure  the  arguments  and  position  of  the  author  ;  the  hearer 
of  a  speech  cannot  do  this  so  conveniently  ;  the  word  of 
mouth  is  fleeting. 

4.  Due  deduction  is  to  be  made  on  account  of  the  excite- 
ment of  the  moment. 

5.  We  must  seek,  in  the  whole  life  and  experience  of 
the  speaker,  for  a  kej'-to  what  he  declares  in  the  speech  by 
way  of  principle  or  expediency.  Men  will  sometimes  make 
statements  which,  separated  from  their  connexion,  may 
have  a  very  alarming  appearance,  and  yet  the  whole  life  of 
him  who   uttered  them  may  convince  us  that  the  meaning 


HERMENEUTICS.  140 

of  what  lie  said  cannot  be  such  as  it  appears.  We  are 
bound,  in  such  cases,  to  allow  due  weight  to  a  man's  life, 
and  to  construe  his  word-;  accordingly;  until  facts  prove 
that  a  change  has  actually  taken  place  in  the  sentiments  of 
the  individual. 

6.  AVe  must  inquire  whether  the  speech  assumes  more, 
or  less,  the  character  of  special  pleading.9  Burke's  and 
Sheridan's  speeches  during  the  trial  of  Hastings,  would 
form  very  doubtful  foundations  for  historical  inquiries, 
without  due  regard  being  paid  to  this  rule. 

These  rules  are  simple,  and,  indeed,  recommend  them- 
selves chiefly  because  founded  on  good  faith  and  common 
sense;  yet  they  are  daily  disregarded,  not  only  in  the  heat 
of  party  strife,  but  by  the  historian.  How  frequently  are 
speeches  quoted  for  or  against  a  point,  which  would  Lose 
all  weight,  or,  perhaps,  have  an  effect  opposite'  to  the 
intended  one,  were  these  simple  rules  properly  attended  to. 
The  same  applies  to  historic  anecdotes,  often  repeated  for 
centuries  and  yet  of  no  value,  if  duly  criticised. 

In  regard  to  the  application  of  the  first  principle  of 
criticism  to  speeches,  namely:  convince  yourself  of  the 
genuineness  of  the  text,  it  is  necessary  to  remark,  that 
neither  professional  reporters,  nor,  always,  our  own  ears  are 
sufficient  guarantees  for  the  genuineness  of  the  text.      We 


9  The  ridicule  of  lawyer-  ami  legal  forms  in  Cicero's  oration,  Pro  Mura  n  \  and  the 
exaggerated  statement  of  a  lawyer's  duty  to  his  client  in  Brougham's  defence  of 
Queen  Caroline,  are  two  marked  illustrations  of  what  the  author  here  term-  "  special 
pleading."  In  the  one  case,  the  law  was  caricatured  by  an  orator  whose  writings 
abound  with  proofs  <>f  his  respect  for  it;  in  the  other,  a  lawyer,  never  remarkable 
for  self-abnegation,  or  sacrifice  of  his  own  claim.-  to  those  of  client,  party,  <>r  cause, 
uttered  a  creed  of  devotion  e\  en  immoral  to  a  client  :  yet  both  are  frequently  quoted 
and  rea-oiied  from  as  if  they  were  deliberate  judgments  upon  the  character  of  the 
profession. 

It  is  hardly  necessary  to  add  that  the  sense  in  which  the  term  "  special  pleading  " 
i-  used  here,  is  not  the  professional  or  the  correct  one.  it  is  a  colloquial  phrase  :  the 
notion  underlying  which  seems  to  be  that  of  "pleading"  advocacy  for  Borne 
•' special"  (sellish)  object,  without  reference  to  the  truth  of  the  case.      1  D. 


150  HERMENEUTICS. 

may  misunderstand  the  utterer,  especially  in  the  noise  of 
public  assemblies,  and  an  opportunity  of  fair  explanation 
should  not  only  be  granted,  but,  if  it  depends  upon  us, 
should  be  afforded. 

Remarkable  instances  of  the  interpretation  or  construction 
of  speeches  have  taken  place  in  legislative  assemblies,  when 
they  have  become  the  subject  of  parliamentary  inquiry. 
Mr.  Manuel  was  expelled  from  the  French  chamber  of 
deputies,  in  February,  1823,  in  consequence  of  an  unfavor- 
able construction  put  upon  an  unfinished  sentence  of  his. 
Our  newspapers,  political  and  religious,  furnish  but  too 
frequent  instances  of  similar  judgments. 

That  pamphlets  written  in  times  of  great  excitement  are 
to  be  interpreted  and  construed  at  the  time,  as  well  as  by 
the  later  historian,  with  all  the  care  which  speeches  require, 
would  not  be  necessary  to  mention  here,  were  they  not  so 
frequently  used  in  a  different  way. 

V.  Orders  and  directions  of  a  passing  nature,  in  the 
army,  navy,  executive  departments,  or  wherever  they  may 
be  given,  are  not  unfrequently  penned  in  a  manner,  which 
admits  of  and  demands  interpretation  and  construction. 
They  are  always  to  be  understood  with  reference  to  the 
known  and  general  object  of  the  utterer.  In  drawing  them 
up,  the  well-known  points  are  omitted  ;  because  the  text  is 
not  to  become  the  general  rule  of  the  actions  of  many  or 
of  successive  generations,  as  is  a  law.  Interpretation  and 
construction  must,  in  these  cases,  go  as  far  as  common 
sense  dictates,  at  the  responsibility  and  peril  of  the  receiver 
of  the  order.10     The  more  implicit  the  order  is  intended  to 


See  note  8,  to  Chap.  IV.,  ante. 


HERMENE1   1  1«  8.  151 

be,  the  more  clearly  therefore  it  ought  to  be  worded,  yel 
its  subject,  or  the  time  at  which  it  is  giveu,  is  frequently 
of  a  character  which  precludes  any  extended  writing.  The 
orders  which  Napoleon  gave  to  his  chief  commanders  on 
the  eve  of  battle,  are  considered  by  military  men  as  models 
of  brevity  and  perspicuity  ;  and  yet  they  make  that  allow- 
ance for  free  action,  which  is  so  indispensable  for  those 
who  have  to  execute  charges  of  the  highest  responsibility. 
I  have  been  told  that  the  first  order  which  General 
Scharnhorst  issued,  in  order  to  arm  all  Prussia,  in  the 
year  1813,  Avas  in  so  small  a  compass,  that  his  aids  could 
write  it  on  a  small  parchment  tablet.  It  is  evident  that 
nothing  essential  could  have  been  done,  had  not  those  who 
received  this  momentous  order  construed  it  in  the  broadest 
manner,  especially  when  we  consider  that  this  very  order 
was  issued  at  a  time,  when  a  fearful  enemy  was  yet  in 
possession  of  a  great  part  of  that  country,  which  was  to 
rise  against  him  within  a  short  time. 

It  may  be  adopted  as  a  rule,  that  in  high  spheres  of 
action,  the  greater  the  man,  the  more  distinctly  will  he 
indeed  give  the  few  essential  points,  upon  which  some  great 
action  mainly  depends,  but  the  less  inclined  will  he  also  be 
found  to  fetter  his  agents  by  pedantic  minutiie.  See 
Wellington's  dispatches  as  illustrations.  But  then,  of 
necessity,  these  few  great  points  will  require  proper  con- 
struction ;  even  extensive,  comprehensive  construction.  So 
do  we  likewise  find  it  in  dispatches  of  great  statesmen  to 
agents  who  are  treating  of  a  peace  The  main  points  will 
be  given,  the  minor  are  left  to  proper  construction,  and  it 
will  be  always  found  that  a  plenipotentiary  who  acts  under 
such  a  minister,  against  an  agent  of  a  pedantic  statesman, 
will  invariably  get  the  better. 


152  HERMENEUT1CS. 

VI.  Contracts,  Deeds,  Wills,  (&c.n  Their  construction 
forms  a  most  important  subject  of  law ;  but  the  rulea 
relating  to  them  and  to  the  positive  law  of  every  country 
ought  to  be  given  connectedly,  in  order  to  be  properly 
understood.  They  belong  to  law  as  their  proper  province. 
Whenever  the  private  citizen  has  officially  to  decide  upon 
these  subjects,  it  is  the  duty  of  the  court  to  charge  him  in 
a  perspicuous  manner,  according  to  his  capacity.  He  is 
often,  however,  called  upon  as  a  private  individual  to  form 
an  opinion,  especially  upou  contracts  and  other  deeds,  and 
for  this  purpose  it  is  desirable  that  some  jurist  of  high 
eminence  should  draw  up  a  popular  work  on  the  construc- 
tion of  contracts,  deeds,  and  wills.  A  work  of  this  sort 
would  be  of  great  advantage  to  the  community  at  large.12 

I  must  refer  the  reader,  for  information  upon  legal  instru- 
ments emanating  from  private  individuals,  or  establishing 
certain  legal  relations  between  them,  to  2  Blackstone,  379, 
and  sequel,  and  the  various  places  where  the  commentator 
speaks  of  wills;  and  Kent's  Comment.  IT.  552,  IV.  344, 
345.  In  the  former  place  (Kent,  II.  552)  the  student  will 
find  several  other  works  referred  to,  especially  Lord  Bacon's 
De  Aagmentis  Scientiarum,  by  a  thoughtful  perusal  of 
which,  the  student  will  do  himself  a  great  service. 

Wherever  a  great  mind,  or  many  of  the  most  prominent 
men  of  a  nation  jointly,  have  endeavored  to  express  the 
essence  of  laws  after  mature  reflection,  we  are  bound  to 
their  attentive  study,  because  their  object  has  been  care- 
fully to  separate  that  which  is  accidental,  or  transient,  from 
the  essential  or  enduring.     In  this  respect,  it  will  be  always 


n  Upon  the  construction  of  these  instruments,  see  Additional  Note  K,  post  —  Ed. 
12  Upon  the  use  of  such  rules,  see  Additional  Note  I,  post,  on  the  Value  of  Formal 
Rules  of  Interpretation.  —Ed. 


HERMENEUTICS.  L53 

useful  to  inquire  into  the  codes  of  those  nations,  who, 
acknowledging  the  same  fundamental  views  of  civilization 
■with  ourselves,  have  severally  codified  their  various  laws. 
Their  codes  are  not  the  capricious  inventions  of  the  closet, 

but  contain  the  essential  principles,  which  scattered  in  their 
accumulated  laws,  anterior  to  their  codification,  arc  now 
embodied  into  one  systematic  whole.  We  need  not, 
indeed,  on  this  account  adopt  the  various  provisions  of 
these  codes;  they  may  be  in  some  cases  repugnant  to 
the  principles  of  our  civil  institutions;  but  they  will 
always  furnish  us  with  ample  matter  for  fruitful  reflection, 
and  not  unfrequently  lead  us  to  wiser  opinions,  or 
strengthen  us  the  more  firmly  in  our  own.  It  goes  far 
to  prove  the  truth  of  a  principle  at  which  we  have  arrived, 
if  we  find  that  it  has  likewise  been  laid  down,  after  patient 
deliberation  and  careful  inquiry  into  the  experience  of  cen- 
turies, by  a  nation  disconnected  from  our  own  and  grown 
up  under  different  institutions.  In  some  cases,  the  evidence 
even  becomes  the  stronger  with  the  greater  difference  of 
the  two  nations,  provided  always  we  can  show  that  the  law 
or  principle  was  not  laid  down  by  the  foreign  nation  for 
some  sinister  purpose,  nor  by  starting  from  principles 
entirely  at  variance  with  those  which  we  acknowledge  in 
corresponding  cases.  This,  however,  belongs  more  prop- 
erly to  the  subject  of  authorities,  and  more  will  be  said  of 
it  farther  below.* 


*  Prussian  Code,  Part  I.  Tit.  IV.  05,  and  seq.  as  to  Wills.  Part  I.  Tit. 
XII.  519,  and  seq.  Part  I.  Tit.  V.  252,  and  seq.}  and  Part  It.  Tit.  VIII. 
2109,  and  seq.  French  Civil  Code,  L156,  1164,  as  to  Wills,  967,  1035. 
Austrian  Code,  the  whole  17th  Book  of  Part  II.  treats  of  Contracts ;  tin- 
whole  of  the  9th  Book  of  Part  II.  of  Wills.     In  the  Corpus  Juris,  the 


154  HEKMENEUTICS. 

VII.  Laws.  It  has  been  shown  that  it  is  impossible 
to  word  laws  in  such  a  manner  as  to  absolutely  exclude  all 
doubt,  or  to  allow  us  to  dispense  with  construction,  even 
if  they  be  worded  for  the  time  for  which  they  were  made, 
with  absolute  (mathematical)  distinctness;  because  things 
and  relations  change,  and  because  interests  conflict  differ- 
ently with  each  other  at  different  times.  The  very  object 
of  general  laws  is  to  establish  general  rules  beforehand ; 
for  if  we  would  attempt  to  settle  each  case  according  to 
the  views  which,  with  the  momentary  interest,  it  might 
itself    suggest,   we    should    establish    at    once    the    most 


Digest  under  the  proper  heads,  and,  with  regard  to  Construction,  Lib.  50, 
tit.  XVII.  de  diversis  regulis  juris  antiqui,  which  will  amply  repay  serious 
and  comprehensive  reflection :  legant  eos  (titulos)  studiosi  juris,  ac  relegant, 
meque  sponsore  credant,  nunquam  fore,  ut  eos  impensai  operas  pamiteat. 
Eeineccii  Elementa  Juris  Civilis,  ed.  quinta,  torn.  II.  350. 

The  Grounds  and  Maxims  of  the  English  Law,  by  William  Noy,  attorney 
general  in  the  reign  of  Charles  I.,  is  a  book  which  ought  to  be  mentioned 
here.     [A  new  edition  of  it  has  been  published  at  Albany  in  1870.  —  Ed.] 
The  student  ought  not  to  remain  unacquainted  with  it,  because  it  has 
some  valuable  parts,  and  continues  to  maintain  a  respectable  place  among 
the  English  law  books  — a  fact  which  will  always  lend  historical  interest 
to  it  at  any  future  period.    Yet  there  is  a  great  lack  of  comprehensiveness 
of  mind,  and  philosophical  penetration,  in  this  work.      It  would  be  a 
matter  of    serious  regret,  indeed,  had    science,  by  this  time,   not  far 
advanced  beyond  the  sphere  of  Noy's  book,  and  though  law,  as  well  as 
practical  life,  have  improved  and  thus  amended  its  deficiencies,  it  is  to  be 
lamented  that  no  work  has  been  produced  long  ago,  able  to  render  Noy 
comparatively  useless.    The  subsequent  editions  of  this  book  can  by  no 
means  be  considered  as  having  changed  the  character  of  the  work.     I 
would  likewise  refer  once  more  to  Vattel's  chapter  on  Interpretation; 
respecting  contracts,  to  Story's  Commentaries  on  Conflict  of  Laws,  pp. 
225,  232.     [See  also  Additional  Note  A,  on  the  Bibliography  of  Interpreta- 
tion.— Ed.] 


HEBMENEUTICS.  L55 

insufferable  tyranny  or  anarchy.  By  this  inherent  gener- 
ality, however,  there  is  a  constant  reason  for  requiring 
construction  in  the  application  of  laws,  since  mosl 
occurring  are  of  a  complex  character.  It  is  in  vain. 
therefore,  to  believe  in  the  possibility  of  forming  a  code 
of  laws  absolutely  distinct,  like  mathematical  theories. 
All  that  true -wisdom  requires  is  to  use  terms  :(s  distiucl 
and  perfect  as  possible,  following  both  the  dictates  of 
reason  and  the  suggestions  of  experience,  and  carefully  to 
establish  rules  of  interpretation  and  construction,  or  legal 
hermeueutics.18 

As  it  has  been  so  often  asserted,  and  to  this  day 
continues  to  be  asserted  by  some  persons,  that  laws  oughl 
to  be  so  clear  that  interpretation  or  construction  can,  and, 
therefore,  ought  to  be  abandoned,  I  feel  obliged  briefly  to 
enumerate  the  causes  which  make  this  an  impossibility.  In 
doing  this,  I  shall  be  pardoned  if,  in  order  to  be  the  clearer 
on  this  very  important  subject,  I  touch  upon  a  few  subjects 
which  have  been  treated  already  at  length.  Yet  I  at  the 
same  time  declare  my  own  settled  conviction,  that  the 
clearest  possible  laws  are  an  incalculable  blessing  to  a 
community,  and  one  which  extends  much  farther  than 
merely  to  the  avoiding  of  unnecessary  litigation:  whilst 
obscure  or  unnecessarily  intricate  laws  are  a  very  curse 
to  a  nation,  and  serve  to  unite  the  lawyers  into  a  compact, 
formidable  and  privileged  class,  to  be  compared  only  to 
the  priesthood  of  some  nations,  ruling  the  uninitiated.  I 
allude  to  a  state  of  tilings  such  as  exists  in  the  Spanish 
colonies,  or  in  the  kingdom  of  Naples,  or  in  some  branches 
of  the  British  law. 


13  Sec  Additional  Note  II,  upon  Equitable  Interpretation,  etc. —  En. 


156  TIERMENEUTICS. 

There  is  a  law  in  the  Chinese  Penal  Code,  as  translated 
by  Sir  George  Staunton,  —  a  work  which  has  many  praise- 
worthy traits,  —  that  may  fairly  be  considered  as  a  model 
of  ambiguous  laws,  to  which  all  others  approach,  more  or 
less.  The  Chinese  Code  says,  "Whoever  is  guilty  of 
improper  conduct,  and  such  as  is  contrary  to  the  spirit  of 
the  laws,  though  not  a  breach  of  any  specific  article,  shall 
be  punished,  at  the  least,  with  forty  blows  ;  and  when  the 
impropriety  is  of  a  serious  nature,  with  eighty  blows.* 
This  is  a  law  clearly  emanating  from  the  spirit  which 
pervades  the  whole  Chinese  empire,  that  the  emperor  is 
the  father,  the  whole  country  but  a  family  —  a  principle 
which  necessarily  always  leads  to  absolutism  and  tyranny, 
the  moment  we  go  beyond  the  family,  in  which  affection, 
not  legal  rule,  gives  the  measure  of  justice  ;  while  personal 
affection  cannot  form  a  fundamental  principle,  where 
personal  connexion  ceases,  and  government  acts  by  dele- 
gation, as  I  have  endeavored  to  show  ere  this.f  This 
ambiguous  and  dangerous  law  would  be,  in  its  spirit  of 
discretionary  power,  not  in  its  form  of  discipline,  a 
perfectly  proper  family  rule.14 


*  It  may  be  observed  here,  that  the  blows,  in  the  Chinese  Code,  are 
frequently  mentioned  as  the  expression  of  value,  as  it  were.  A  fine  of  so 
much  is  substituted  for  a  certain  number  of  blows.  They  are  the  pound 
sterling  of  penal  valuation.  However,  the  compounding  ceases  with  the 
lowest  classes,  where  real  pounding  takes  place. 

f  Political  Ethics. 

14  Among  the  difficulties  that  surround  the  interpretation  of  laws,  none  is  greater 
than  that  which  springs  from  the  injudicious  use  in  them  of  words  of  subjective 
meaning,  i.e.,  those  of  which  the  application  to  an  actual  case  or  person  must 
depend  upon  an  opinion  in  the  mind  of  the  judge,  or  other  person  interested,  not 
capable  of  verification  by  any  recognized  test.  Law  is  objective  in  its  very  nature, 
and  in  this  quality  lies  its  chief  and  most  fundamental  distinction  from  ethics.  It 
should  be  enunciated  in  terms  of  the  same  kind,  so  that  if  any  dispute  arises  upon 


HERMENEUTICS.  157 

Interpretation  and  construction  of  laws,  then,  become,  or 
may  become,  necessary:  — 

On  account  of  the  character  of  human  language,  as  has 
been  shown. 

On  account  of  their  ambiguity,  arising  either  from  a 
want  of  acquaintance  on  the  part  of  the  legislator,  with 
the  subject  legislated  upon,  or  from  contradictions  in  the 
law  itself. 

On  account  of  their  application  to  complex  cases. 

On  account  of  change  of  the  circumstances  and  things  to 
which  they  must  be  applied,  or  of  the  spirit  of  those  by 
whom  they  are  applied,  as  was  the  case  with  many  English 
penal  laws,  until  very  late,  which  the  jurors  would  not, 
and  could  not,  apply  without  ample  construction. 


the  applicability  of  its  provisions,  tlioir  true  force  may  not  be  merely  felt  or 
perceived  in  every  man's  heart  or  mind,  but  may  be  demonstrated  to  others  by 
indisputable  proofs. 

The  political  value  of  the  last  rule  is  very  great,  and  has  heen  pointed  out  by  the 
author  on  p;  ge  102.  The  value  of  a  positive  rule  of  law,  in  its  influence  upon  the 
mind  of  the  judge  who  has  to  decide  a  case,  as  compared  with  a  mere  judgment  of 
right  and  wrong,  upon  all  the  facts,  is  excellently  shown  by  Trendelenburg,  §S0. 

It  was  this  subjective,  indefinable  character  which  formerly  distinguished  the 
extraordinary  jurisdiction  of  the  English  chancellor,  who  decreed  men  to  do,  not 
what  the  law  ordained,  butwhat  they  ought  in  conscience  to  do.  Snch  conscientious 
obligation  admitted  of  no  uniform  standard,  but  could  only  be  determined  by  a  view 
of  all  the  circumstances  as  presented  to  the  judge.  Hence,  no  doubt,  the  long  and 
bitter  opposition  made  to  it  by  the  commons,  and  the  unfavorable  comparisons 
between  it  and  the  common  law,  with  its  rigid  forms  and  plain,  though  harsh  rule-. 
Seldeu  expressed  it  in  his  comparison  of  equity  to  the  length  of  the  chancellor's 
foot.  Chief  Justice  Vaughau  had  it  in  mind  when  he  marvelled  to  hear  of  precedents 
in  equity. 

The  same  is  true  also  of  the  mquitas  of  the  civil  law.  The  essential  distinction  of 
law  and  equity  is  to  he  found  in  the  relation  of  one  and  the  other  to  their  authors 
and  subjects,  in  the  objective  character  of  law  and  the  subjective  character  of 
equity.  F..r  law  is  the  will  of  a  state  as  a  power,  without  reference  to  it-  origin. 
Whether  it  comes  in  the  shape  of  a  statute,  a  custom,  or  a  scientific  principle,  when 
once  fixed  as  law,  it  no  longer  depends  on  the  judgment  or  discretion  of  its  author. 
but  govern-  by  its  own  force;  in  other  words,  it  becomes  objective  Equity,  on  the 
other  hand,  has  not  yet  attained  thai  condition;  it  Is  dependent  on  the  convictions 
of  its  author-,  and  varies  with  them;  it  is  the  opinion  of  the  citizen,  or  the  b  »dy  ol 
citizens,  on  all  the  questions  thai  may  be  regulated  by  law.  and  on  the  law  itself  as 
regulating  them.  .Mori/.  Voigt,  Das  jus  naturale,  equum  et  bonum,  und  jus  natural e 
der  Bomer.    Eeipsie,  ISjO,  vol.  I.,  p.  15.  — Eu. 


158  HEKMENEUTICS. 

On    account    of  their    militating,  if   applied    to    certain 

cases,  or  in  certain  parts,  with  more  general  and  binding" 

rules;  whether  these  latter  be  constitutional,  written  and 

olemnly  acknowledged  rules,  or  moral  ones,  written  in  the 

heart  of  every  man. 

VIII.  What  has  been  said  respecting  all  the  specific 
rules  applicable  to  contracts,  &c,  holds,  likewise,  in  regard 
to  laws.  They  cannot  possibly  all  be  given  here  ;  but  the 
most  general  rules  and  principles  find  here  a  proper  place, 
and,  that  the  reader  may  have  an  easy  survey  of  them,  a 
few  which  have  been  given  already,  as  rules,  applicable  to 
all  interpretation,  are  briefly  repeated  here. 

The  student  is  referred,  for  a  further  pursuit  of  this 
study,  to  the  12th  chapter  of  the  5th  Book  of  Pufendorf 's 
Law  of  Nature  and  Nations,  as,  likewise,  the  17th  Title  of 
the  50th  Book  of  the  Digest,  which  we  have  cited  in  the 
note  to  a  previous  paragraph.  The  principles  there  laid 
down  by  the  ancient  civilians  have,  as  well  as  the  whole 
code,  materially  influenced  the  common  law  of  England. 
See  Kent's  Comment.  Lect.  XXXIX.  12. 15  See,  also, 
Grotius  de  Jure  Belli  et  Pacis,  Lib.  II.  Cap.  XVI.  de 
Interpretatione .  * 

The  following  are  the  most  general  rules  :  — 
1.  The  true  meaning  of  words  can  be  but  one. 


*  I  would  refer,  likewise,  to  the  works  and  places  mentioned  in  the 
previous  section ;  also,  to  the  article  on  the  Interpretation  of  Law,  in  the 
London  Law  Magazine,  No.  36,  &c.  [See  also  Additional  Note  A,  on  the- 
Bibliography  of  Interpretation.  —  Ed.] 

15  Vol.  II.,  pp.  552-557  of  Holmes's  (12th)  edition.—  Ed. 


IIERM E N E LTICS .  1  ■> ' ' 

2.  Honest,  faithful,  bond  fide  interpretation  is  all  impor- 
tant; common  sense  must  guide  us. 

3.  Words  arc  to  be  taken  according  to  their  customary, 
not  in  their  original  or  classical,  signification. 

4.  The  signification  of  a  word,  or  the  meaning  of  a 
sentence,  when  dubious,  is  to  be  gathered  from  the  context. 
or  discovered  by  analogy,  or  fair  induction.  Yet  a  word 
does  not  always  have  but  one  meaning  in  the  same  dis- 
course or  text.  This  would,  in  fact,  militate  with  the 
important  rule,  that  we  are  to  take  words  in  their  natural 
sense,  according  to  custom  and  their  connexion. 

5.  Words  are  always  understood  as  having  regard  to  the 
subject-matter. 

6.  The  causes  which  led  to  the  enactment  of  a  law  arc 
guides  to  us.  If  one  interpretation  would  lead  to  ab- 
surdity, the  other  not,  we  must  adopt  the  latter.  So, 
that  interpretation  under  which  the  effect,  which  the  leg- 
islator had  in  view,  will  best  be  attained  is  preferable  to 
another. 

For  the  above  rules  see  Blackstone  and  Pufendorf.  As 
to  rule  6,  sec  Dig.  Lib.  50,  tit,  17,  67.16 

7.  Two  chief  objects  of  all  government  are  peace  ami 
security ;  the  state  can  never  be  understood  to  will  any 
thing  immoral,  so  long  as  there  is  any  doubt.     Laws  can- 


's Quotiens  idem  scrmo  duas  sententias  exprimit,  oa  poti^simum  excipiatur  qua 
rei  gerenda:  aptior  est. 

The  gloss  illustrates  this  by  a  law  respecting  natural  children  (rr.  Inst,  de  adopt. 
I.,  11),  the  term  "  natural"  being  sometimes  opposed  to  "adoptive,"  sometimes  to 
"legitimate,"  and  conclude-;  thus:  Et  hoe  dicitur  aptior  expositio,  ut  res  vale. it 
potius  quam  pcreat  ct  non  sit  contraria  juri 

Where  the  language  of  a  remedial  statute  is  doubtful,  or  will  bear  two  interpre- 
tations, the  court  will  give  that  which  will  besl  promote  the  remedy  intended  by  the 
legislature.    Hockford,  liock  Island  &  St.  Louis  It.  Co.  v.  Ilelliu,  Go  111.  ZM. 


160  HEI1MENEUTICS. 

not,  therefore,  be  construed  as  meaning  any  thing  against 
the  one  or  the  other.  Public  security  and  morality  are  the 
supreme  law  of  every  land,  whether  this  be  expressly 
acknowledged  or  not. 

8.  The  general  and  superior  prevails  over  the  specific 
and  inferior ;  no  law,  therefore,  can  be  construed  counter 
to  the  fundamental  law.  If  it  admits  of  another  construc- 
tion, this  must  be  adopted. 

Lord  Coke  was  for  holding  laws  void  that  were  contrary 
to  reason.  Chancellor  Kent  says,  Comment.  I.  448:  "But 
while  we  admit  this  conclusion  of  the  English  law  (namely, 
that  the  will  of  the  British  legislature  is  the  supreme  law 
of  the  land,  and  demands  perfect  obedience,)  we  cannot 
but  admire  the  intrepidity  and  powerful  sense  of  justice 
which  led  Lord  Coke,  when  chief  justice  ot  the  K.  B.,  to 
declare  as  he  did  in  Doctor  Bonham's  case,  that  the  com- 
mon law  doth  control  acts  of  parliament,  and  adjudges 
them  void  when  against  common  right  and  reason.  The 
same  sense  of  justice  and  freedom  of  opinion,  led  Lord 
Chief  Justice  Hobart,  in  Day  v.  Savage,  to  insist,  that  an 
act  of  parliament  made  against  natural  equity,  as  to  make 
a  man  judge  in  his  own  case,  was  void  ;  and  induced  Lord 
Chief  Justice  Holt  to  say,  in  the  case  of  the  City  of  London 
v.  Wood,  that  the  observation  of  Lord  Coke  was  not 
extravagant,  but  was  a  very  reasonable  and  true  saying. 
Perhaps  what  Lord  Coke  said  in  his  reports,  on  this  point, 
may  have  been  one  of  the  many  things  that  King  James 
alluded  to,  when  he  said,  that  in  Coke's  reports  there  were 
many  dangerous  conceits  of  his  own,  uttered  for  law,  to  the 
prejudice  of  the  crown,  parliament,  and  subjects."  No 
doubt,  they  are  dangerous   to    the   pretensions   of  a  king 


HERMENEUTICS.  161 

whose  arrogance  was    equalled  by  his  want  of   judgment, 
courage,  honesty  and  decency.17 


17  Coke's  own  words  in  this  celebrated  case  (Bonham's  Case,  8  Rep.)  are:    "  And 

it  appears  in  our  I ks  that,  in  many  cases,  the  common  law  will  control  acts  of 

parliament,  and  sometimes  adjudge  them  to  be  absolutely  void;  for,  when  an  acl  of 
parliament  is  against  common  right  and  reason,  or  repugnant,  or  impossible  < 
performed,  the  common  law  will  control  it,  ami  adjudge  such  act  to  be  void;  and, 
therefore,  in  8  Edw.  in.,  30  a.b,  Thomas  Tregor's  Case,  on  the  •-'  Stat.  W.,  c. 
artic.  super  ckartas,  c.  9,  Herle  saitli,  sonic  statutes  are  made  against  law  and  right, 
which  those  who  made  them  perceiving,  would  not  put  them  in  execution."  s  Co. 
234.  And  he  illustrates  this  by  several  cases;  in  everyone  of  which  the  question 
was,  not  as  to  the  validity  of  a  statute  as  a  whole,  but  as  to  some  particular  appli- 
cation of  its  terms.  Thus,  Coke  concludes  one  of  his  illustrations  with  the  words : 
'■  And  because  it  would  be  against  common  right  and  reason,  [for  the  heir  to  have  a 
cessavit  for  the  cesser  in  the  time  of  his  ancestor,  vide  F.  X.  B.  209,  F;  Plow.  110  a;  2 
lii~i.it-';  .'  Brownl.  265]  the  common  law  adjudges  the  act  of  Parliament  as  to  that 
point  void." 

A  collection  of  the  comments  made  by  different  English  judges  and  writers  during 
the  two  la-t  centuries  upon  this  doctrine  of  Coke's,  would  be  very  instructive  in  its 
bearing  upon  their  theory  of  interpretation,  and  of  law  in  general.  One  or  two 
examples  must  suffice  here.  In  Blackstone's  (lComm.91)  present  text  we  read: 
"  Lastly:  acts  of  parliament  that  are  impossible  to  be  performed  are  of  no  validity; 
and  if  there  arise  out  of  them  collaterally  any  absurd  consequences,  manifestly 
contradictory  to  common  reason,  they  are,  with  regard  to  those  collateral  conse- 
quences, void.  I  lay  down  the  rule  with  these  restrictions,  though  I  know  it  is 
generally  laid  down  more  largely,  that  acts  of  parliament  contrary  to  reason  are 
void.  But  if  the  parliament  will  positively  enact  a  thing  to  be  done  which  is  unrea- 
sonable, I  know  of  no  power  in  the  ordinary  forms  of  the  Constitution  that  is  rested 
with  authority  to  control  it;  and  the  examples  usually  alleged  in  support  of  tin- 
sense  of  the  rule  do  none  of  them  prove  that,  where  the  main  object  of  a  statute  is 
unreasonable,  the  judges  are  at  liberty  to  reject  it;  for  that  were  to  set  the  judicial 
(lower  above  that  of  the  legislature,"  etc. 

It  is  worth  noting  that  the  words  above  quoted  in  italics  were  not  in  the  first 
editions  of  the  Commentaries,  but  were  added  some  time  between  the  fourth 
edition  (1770)  and  the  ninth  (1783),  which  was  edited,  after  the  commentator's  death, 
by  K.  Burn,  and  contained  the  author's  last  correct  ions.  Any  one  who  has  examined 
carefully  the  earlier  editions  must  have  been  struck  with  the  number  of  minute 
corrections  which  Blackstone  made,  from  time  to  time,  in  them.  A  critical  edition, 
showing  all  thesochanges,  would  be  of  substantial  value  for  the  history  of  English 
law. 

But  even  this  cautious  statement  was  denied  by  Blackstone's  most  careful,  and, 
all  things  considered,  perhaps  his  ablest  commentator,  Prof.  Christian,  who  saj  -.  in 
his  note  to  this  passage:  "If  an  act  of  Parliament  i-  clearly  and  unequivocally 
expressed,  —  with  all  deference  to  the  learned  commentator,  —  I  conceive  it  is 
neither  void  in  its  direct  nor  collateral  consequences,  however  absurd  and  unrea- 
sonable they  may  appear  "  And  in  another  note,  to  the  passage  in  which  Blackstone 
asserts  that  no  human  laws  are  of  any  validity  if  contrary  to  the  law  of  nature  (1 
Comm.  41),  Christian  makes  this  strong  statement:  "And  if  an  act  of  parliament— 
if  we  could  suppose  such  a  case— should,  like  the  edict  of  Qerod,  command  all  the 
children  under  a  certain  age  to  be  slain,  the  judge  ought  to  resign  his  office  rather 
than  be  auxiliary  to  its  execution;  but  it  could  only  lie  declared  void  by  the  high 
authority  by  which  it  was  ordained ! "  It  has  also  been  suggested  that  Blackstone 
had  in  mind  private  acts;  as  to  which,  see  2Comm.  346.    But  if  this  passage  were 

11 


162  HERMENEUTICS. 

Our  courts  have  repeatedly  declared  laws  void  as  being 
against  the  constitution.  For  the  various  American  cases, 
confirming  this  necessary  doctrine  in  all  countries,  in  which 
there  is  a  constitution,  see  Kent's  Comment.  Lect.  XX., 
where  the  commentator  speaks  in  just  terms  of  that 
beautiful  argument  delivered  on  this  vital  question,  by 
Chief  Justice  Marshall,  in  the  celebrated  case  of  Marbury 
v.  Madison  (1  Cranch,  137), — an  opinion  which  is  of  the 
utmost  importance  in  the  constitutional  history  of  mankind. 

9.  A  law  contrary  to  the  fundamental  or  primary  law, 
may  at  any  time  be  declared  so,  though  it  has  already  been 
acted  upon;  for  "that  which  was  wrong  in  the  beginning 
cannot  become  valid  in  the  course  of  time."  Dig;.  Lib.  50, 
tit.  17,  24,  and  — 

Quod  ab  initio  non  valet,  id  tractu  tempo ris  non  con- 
valesced18 


intended  to  be  merely  equivalent  to  that,  it  need  not  have  been  so  carefully 
qualified. 

Mr.  Serjeant  Stephen,  in  his  Commentaries,  founded  on  Blackstone,  has  omitted 
the  passage  altogether;  and  Broom  and  Hadley,  in  theirs,  have  substituted  for 
Blackstone's  statement,  that  the  acts  "  are,  with  regard  to  those  collateral  conse- 
quences, void,"  the  phrase,  that  "  a  more  liberal  construction  would  be  put  upon  it, 
[the  act]  so  as  to  avoid,  if  possible,  such  collateral  consequences  "  Blackstone's 
Commentaries,  rewritten  by  Broom  and  Hadley.    London :  1870.    Vol.  I.,  p.  94. 

Finally,  the  power  has  been  repudiated  from  the  bench,  in  strong  terms,  by  Lord 
Campbell,  C.  J.,  K.  B.,  in  Woodward  v.  Watts,  2  El.  &  Bl.  453. 

Lord  Campbell  had  expressed  himself  extra-judicially  on  the  same  matter  in  his 
Lives  of  the  Lord  Chancellors  (vol.  II.,  p.  373;  vol.  VI.,  pp.  251,  329,  374),  and  quotes,  in 
these  passages,  interesting  dicta  upon  it  by  Ellesmere,  Hardwicke,  Camden, 
Northington,  and  Mansfield. 

For  other  discussions  of  it,  beside  the  references  to  the  older  books  collected  in 
8  Coke  — ,  and  in  the  notes  to  1  Bla.  Comm.  41, 91,  see  Forbes  v.  Cochrane,  2  Barn.  & 
Cress.  448,  471;  Ham  v.  McClaws,  1  Bay,  93  (a  distinct  judicial  recognition  of  the 
doctrine  laid  down  by  Coke) ;  Vattel,  Book  I.,  chap.  3,  §§  33,  34;  Bowyer's  Universal 
Public  Law,  pp.  273,  285,  305, 344 ;  Lindley's  Thibaut's  Jurisprudence,  note  to  §  11.  —  Ed. 

is  it  does  not,  however,  follow  from  this  rule,  as  has  sometimes  been  claimed,  that 
a  court  would  violate  its  oath  to  support  the  Constitution,  if  it  should  follow  a  formal 
decision  interpreting  it,  on  the  principle  of  stare  decisis,  against  its  present  convic- 
tions as  to  its  true  meaning. 

"The  court,  therefore,  which  follows  a  decision  once  made  upon  a  constitutional 
question,  in  obedience  to  this  maxim,  is  no  more  obnoxious  to  the  charge  of  setting 


HERMES  l.i    IICS.  1GH 

This  does  not  militate  with  the  other  maxim  given  by 
\<>v  that,  Communis  error  facil  ju-.19  This  is  true  so  long 
as  the  communis  error  is  not  acknowledged  as  such,  and 
if  we  do  not  understand  by  jus  an  immutable  thing,  bui 
some  thing  which,  on  proper  grounds,  may  be  declared  to 
he  non-jus.  Else,  should  it  have  remained  forever  jus  to 
hum  witches?  Common,  assuredly,  the  error  was,  for  it 
has  been  computed  that,  in  the  whole,  nine  millions  five 
hundred  thousand  beings  were  sacrificed  as  witches  or 
wizards,  not  to  mention  the  countless  victims  of  the  mosl 
barbarous  torments.* 


*  The  Revelation  of  God,  &c,  by  Henry  Stephani,  D.D.  1835  (in  German), 
1  vol.  page  194.  Dr.  Stephani  computes,  of  course,  the  number  of  the 
victims  of  witch  trials  in  Christian  countries  only. 

aside  the  Constitution  upon  grounds  of  policy  than  if,  in  obedience  to  the  same 
maxim,  it  should  follow  a  decision  upon  a  statutory  question,  contrary  to  its  own 
views,  it  would  be  obnoxious  to  the  charge  of  disregarding  the  law  en  grounds  of 
policy.  The  court  is  as  clearly  bound  to  enforce  the  law  as  it  is  the  Constitution. 
But  in  giving  due  effect  to  the  maxim  of  stare  decisis,  though  its  own  views  would  be 
different,  itdisregards  neither  the  Constitution  nor  the  law,  for  both  intended  that 
this  maxim  should  have  due  effect  in  the  judicial  system  which  they  established. 
The  question  is,  did  the  Constitution  itself  intend  that  each  judge  Bhonld,  tor  all 
time,  decide  upon  his  own  interpretation,  according  to  his  own  view.-,  as  though  do 
decision  had  ever  been  made;  or  did  it  intend  that  such  decisions,  once  made,  and 
acted  upon  by  the  people,  so  that  change  would  overthrow  all  the  transactions  of 
the  past,  should  be  followed  by  succeeding  judges  ?  Obviously  the  latter.  It  i-  not 
to  be  expected  that  any  express  provision  should  be  found  in  the  Constitution 
enjoining  obedience  to  the  maxim.  Bui  it  was  an  established,  unquestioned  prin- 
ciple in  the  English  and  American  law,  and  every  constitution  must  be  assui 1  to 

have  contemplated  its  existence,  and  to  have  intended  it-  enforcement  The  judge, 
therefore,  who  follows  a  decision  once  made,  and  so  long  acted  on,  that  a  just  appli- 
cation of  this  maxim  forbids  a  change,  although  his  own  views  of  the  question,  if 
new,  would  have  been  different,  is  not  disregarding  the  Constitution,  but  obeying  it 
within  its  true  intent  and  meaning."     Knccland  v.  Milwaukee.  15  Wis.  691.—  I   D. 

"  Communis  error  facit  jus  is  found  in  Coke's  Fourth  Inst.,  p.  310:  "And  because  all 
the  judicial  precedent-  were  in  that  form  ever  since  the  making  of  the  statute,  it  was 
adjudged  to  be  good,  for  communis  error  facit  jus."  See  also  Broom's  Leg.  Max. 
104,  Chap.  3,  §'2. 

But  the  original  meaning  of  the  maxim  seems  to  be  different  from  that  in  which  it 
is   taken  here.     Communis  there    doe-  not  signify  general,  popular,  but  rather,  in  a 
strict  sense,  common  to  the  parties  interested.     When  all  the  parties  to  a trat 
Hon  have  been  under  a  similar  mistake  as  to  their  rights,  these  are  taken  to  be  such 
as  they  have  supposed  them,  and  acted  on  them.  -Eu. 


lo4  HERMENEUTICS. 

10.  If,  therefore,  the  law  admits  of  two  interpretations, 
that  is  to  be  adopted  which  is  agreeable  to  the  fundamental 
or  primary  law,  though  the  other  may  have  been  adopted 
previously. 

11.  Custom  of  the  country  wherein  the  law  was  made 
supplies  the  deficiency  of  words. 

12.  In  dubious  cases,  the  fairer  interpretation  is  to  be 
adopted.  "Every  where,  especially  in  law,  equity  is  to  be 
considered."     Dig.  Lib.  50,  tit.  17,  90,  192,  200. 

13.  That  which  is  probable,  or  customary,  is  preferable 
to  that  which  is  less  so,  wherever  obscurity  exists. 

14.  If  two  laws  conflict  with  each  other,  that  must  yield, 
the  effect  of  which  is  less  important ;  or  that  is  to  be 
adopted,  by  the  adoption  of  which  we  approach  nearest  to 
the  probable  or  general  intention  of  the  legislator.  Specific 
rules,  adopted  for  the  protection  of  private  individuals, 
must  be  followed. 

Whether  the  laws  were  made  by  the  same  legislator,  or 
body  of  legislators,  or  not,  does  not  alter  the  case.  For 
the  legislative  power  in  a  state  is  continuous,  always 
aiming,  or  supposed  to  aim,  at  the  public  welfare.* 

15.  The  more  general  the  character  of  the  law  is,  the 
more  we  ought  to  try  strictly  to  adhere  to  the  precise 
expression.  Without  observing  this,  the  law  would  be  a 
wavering,  instead  of  a  stable  rule,  and  we  must  presume 
that  the  words  have  been  the  better  weighed,  when  a  more 
general  effect  has  been  intended.  Many  considerations, 
however,  may  exist  which  would    oblige   us    to    follow  a 


*  See  Puffendorf's  instance  of  two  men  arriving  at  the  same  time  at 
the  gaol,  or  the  conflicting  laws  with  regard  to  a  woman  who  had  deserved 
a  statue. 


HERMENEUTIC8.  1  65 

different  course,  e.g.   the   cruelty  of  a  law,  its   antiquity, 
and  consequent  unfitness. 

1G.  If  any  doubt  of  the  meaning  exists  in  penal  laws  or 
rules,  they  ought  to  be  construed  in  favor  of  the  accused  ; 

of  course,  without  injury  to  any  one  else.20 

17.  As  between  the  government  and  an  individual,  the 
benefit  of  the  doubt,  all  other  reasons  being  equal,  ought 
in  these  cases  to  be  given  to  the  individual,  not  to  the 
authority  ;  for  the  state  makes  the  laws,  and  the  authority 
has  the  power  ;  yet  it  is  subversive  of  all  good  government, 
peace,  and  civil  morality,  if  subtlety  is  allowed  to  defeat 
the  wise  object  of  the  law,  or  if  a  morbid  partiality  for  an 
evil-doer  guides  the  interpreter. 

18.  The  weak  (hence  the  individual  arraigned  by  the 
state)  ought  to  have  the  benefit  of  doubt;  doubt  ought 
to  be  construed  in  mercy,  not  in  severity ;  a  law  may  be 
rendered  milder,  but  not  more  severe. 

IX.  Constitutions.  Constitutions  are  always  laws  and 
guarantees  —  "  sponsio  communis" — the  fundamental  and 
organic  law,  and  in  many  cases  they  are  actual  and  solemn 
pacts  and  covenants.  In  another  work  I  have  endeavored 
to  show,  that  in  countries  in  which  the  rulers  do  not  directly 
come  from  the  people  and  periodically  return  to  them.  but. 
on  the  contrary,  are  as  to  their  appointment  removed 
beyond  the  influence  of  the  people,  in  all  hereditary 
governments,  but  especially  in  monarchies,  constitutions 
are  always  in  a  certain  point  of  view  to  be  considered  as 
contracts  between  the  people,  on  the  one  side,  and  the 
ruling  race  or  dynasty,  on  the  other,  whether   nominally 


See  Additional  Note  J,  on  the  interpretation  <>f  Criminal  Law.     Ed 


166  HERMENEUTICS. 

made  as  contract  or  granted  by  the  monarch,  so  long  as 
either  party  insists  on  the  maintenance  of  the  constitution, 
and  does  not  allow  the  other  party  to  break  it.  The 
preamble  of  the  instrument  does  not  change  the  matter, 
and  the  French  charter  granted  by  Louis  XVIII.  was  a 
solemn  compact  so  long  as  each  party  repelled  the 
aggressions  of  the  other ;  and  when  the  party  of  the 
rulers  finally  came  to  invalidate  the  constitution  in  some 
of  its  vital  points,  the  nation  did  not  reason  on  the  ground 
that,  as  the  king  had  given  it,  the  king  might  take  it,  but 
that  the  charter  is  a  solemn  covenant,  and  to  subvert  it  is 
subverting  the  very  foundation  of  government,  throne  and 
all.  So  in  remodelling  the  charter  we  find  among  other 
things  a  declaration  "that  the  throne  is  vacant  de  facto 
and  de  jure,"  substituted  for  the  previous  preamble  in 
which  were  the  words :  Rous,  that  is,  the  king,  avons 
volontairement  et  par  libre  exercice  de  notre  autorite  royale 
accorde  et  accordons,  fait  concession  et  octroi  a  nos  sujets, 


*  In  French,  a  constitution,  nominally  or  really  granted  from  the  mere 
grace  and  good  will  of  the  ruler,  is  called  octwyee.  Hardly  had  I  pub- 
lished in  the  article  Constitution,  in  the  Encyclopaedia  Americana,  the 
following  remarks,  when  the  French  revolution  of  1830,  proved  that  all 
France  took  the  same  view.  "A  chartered  constitution,  or  constitution 
octroyee,  partakes  much  of  the  nature  of  a  compact,  as  soon  as  the  people 
have  sufficient  spirit  and  sense  of  justice  to  prevent  it  from  being  infringed 
or  abolished,  and,  asserting  the  natural  rights  of  men,  whose  rulers  exist 
only  for  their  benefit,  avow  that  they  will  submit  to  the  government  only 
as  long  as  the  government  observes  the  constitution.  In  fact,  a  consti- 
tution octroyee,  in  any  case,  can  hardly  be  regarded  otherwise  than  as  a 
compact,  proceeding,  as  it  does,  from  the  wants  of  the  times  and  the 
demands  of  the  people,  and  expressing  the  intention  of  the  ruler  to 
observe  certain  rules,  which  these  wants  and  demands  prescribe.     Where 


HERMENEUTIC8.  1  ''" 

Some  constitutions  assume  more  or  less  the  distinct 
character  of  a  contract,  or  even  that  of  a  treaty,  made 
by  contracting  powers,  such  as  the  constitution  of  the 
Germanic  confederacy;  others  are  general  rules  which 
have  been  settled  and  expressed,  as  much  in  order  to 
lav  down  general  principles  of  action,  so  that  disorder 
may  be  prevented,  and  every  citizen  may  know  what  he 
may  safely  do,  and  what  he  ought  to  avoid,  as  to  limit 
the  power  of  those  in  authority,  that  they  may  not  make 
improper  and  dangerous  use  of  it.  This  is  the  case  with 
the  state  constitutions  in  the  United  States. 

If  we  survey  all  political  constitutions  with  reference  to 
our  subject,  we  shall  find  the  following  classes  :  — 

Constitutions  which  consist  of  a  declaration  of  rights, 
whether  freely  established  by  the  people,  or  granted  by 
the  authority,  or  wrung  by  the  former  from  the  latter,  and 
of  certain  broad  principles,  which  are  to  be  observed  in 
governing  the  people ;  but  not  of  a  description  of  the 
form    of  government,    and    a    limitation    of   the    various 


would  be  its  value,  how  could  it  be  regarded  as  a  fundamental  law, 
controlling  the  operations  of  the  government,  if  it  were  liable  to  be 
abolished  at  any  moment,  at  the  pleasure  of  the  sovereign?  That  the 
monarch  acted  from  compulsion  in  granting  the  constitution,  only  proves 
that  the  character  of  the  times  made  it  indispensable.  The  French  ultras 
are  grievously  mistaken,  when  they  pretend  that  the  king  may  abolish  the 
Charte  because  he  granted  it.  It  is  not  the  words  with  which  it  is 
prefaced,  but  the  circumstances  under  which  it  was  given,  that  are  to 
determine  its  character.  It  was  granted  to  satisfy  the  demands  of  the 
French  people,  and  as  a  pledge  for  the  security  of  their  liberties;  and  as 
long  as  they  hold  to  the  grant,  it  is  impossible  for  the  ruler  to  recall  it. 
Such  a  constitution,  therefore,  may  be  considered  as  resting  virtually  on 
a  compact." 


168  HERMEXEUTICS. 

authorities  thereof.  The  English  declaration  of  rights 
is  of  this  class,  although  the  law  and  custom  deposited 
in  the  long  history  of  England  form  a  very  detailed  con- 
stitution. 

Constitutions  which  aim  at  defining  the  government  and 
its  powers  and  are  the  emanation  of  the  sovereign  will  of  a 
whole  state  or  nation. 

Constitutions  which  are  formal  compacts  between  a  nation 
and  a  ruling  race.  They  originate  when  a  family,  not  fully 
or  clearly  entitled  to  the  throne,  is  called  to  occupy  it  on 
the  distinct  understanding  contained  in  the  constitution. 
Such  was  the  case  with  Louis  Philippe,  king  of  the  French, 
Leopold,  king  of  the  Belgians,  Bernadotte,  king  of  Sweden, 
and  several  others.  Or  they  may  originate  after  civil 
strifes  between  the  people  and  their  rulers,  and,  in  these 
cases,  are  laid  down  as  the  distinct  compact  on  which,  for 
the  future,  the  two  parties  are  agreed  to  support  and  pro- 
tect each  other. 

Constitutions  which  consist  in  formal  compacts  between 
contracting  powers  independent  of  each  other  before  the 
conclusion  of  the  compact,  wherein  distinct  points  are 
granted  and  limits  defined  ;  as  was  the  case  with  the  United 
Provinces  of  the  Low  Countries,  and  is  the  case  with  the 
United  States  of  America,  the  cantons  of  Switzerland,  and 
other  confederacies.  These  latter  constitutions  will  always 
be  more  or  less  affected  by  a  most  powerful  element, 
which  nevertheless  may  be,  strictly  speaking,  extra- 
political,  namely,  by  the  principle  of  nationality.  A  con- 
federacy may  consist  of  sovereign  members,  and  yet 
language,  religion,  common  civilization,  common  origin,  in 
short  a  common   history,  may  furnish   most   powerful   ties 


HESMENEUTICS.  1  69 

and  influential  elements  besides  the  pronounced  and  strictly 
acknowledged  political  ties  of  the  union.-'1 

X.  In  considering  the  construction  or  interpretation  of 
constitutions,  it  is  necessary  to  mention,  once  more,  that, 
wherever  human  language  is  used,  interpretation  or  con- 
struction becomes  indispensable,  even  with  regard  to 
constitutions.  The  constitution  of  the  United  States  says: 
that  congress  shall  have  the  power  of  regulating  commerce, 
but  it  does  not  say  how  far  this  regulatory  power  shall 
extend.  This  sentence,  then,  must  be  interpreted,  if  we 
are  desirous  to  ascertain  what  precise  meaning  the  framers 
of  our  constitution  attached  to  it,  and  construed,  if  we  are 
desirous  of  knowing  how  they  would  have  understood  it 
respecting  new  relations,  which  they  could  not  have  known, 
at  the  time,  and  which  nevertheless  fall  decidedly  within 
the  province  of  this  provision.  The  many  debates,  at 
various  periods,  on  this  very  provision,  sufficiently  prove 
that  it  is  differently  understood  by  different  men  and 
parties,  and  that  conscientious  construction  is  called  for. 
The  question  is  not,  shall  we  construe  at  all?  but:  what 
are  the  general  rules  of  political  construction  which  may  be 
safely  followed? 

To  argue,  as  has  been  clone,  that  the  necessity  of  con- 
struction shows  the  futility  of  constitutions,  is  altogether 
inadmissible,  for  it  would  equally  apply  to  any  law  what- 
ever, to  all  contracts  and  wills,  to  any  human  language  , 
and  to  the  bible  no  less  than  to  political  codes. 

The  following  rules  appear  to  me  the  most  essential  in 
constit  ntional  henneneutics  :  — 


1  See  Additional  Note  M,  on  Unwritten  Constitutions. —Ed. 


170  HERMENEUTICS. 

1.  A  primary  rule,  suggested  by  mere  common  sense, 
yet  so  frequently  abandoned,  both  in  religion  and  politics, 
and  always  the  more  flagrantly  the  more  men  are  obliged, 
by  the  unsoundness  of  their  view,  to  resort  to  special 
pleading,  is,  that  we  ought  not  to  build  arguments  of 
weighty  importance  on  trifling  grounds  ;  not  to  hang  bur- 
dens of  great  weight  upon  slight  pegs  ;  for  instance,  an 
argument  of  the  highest  national  importance  upon  the 
casual  position  of  a  word.  This  rule  applies,  indeed,  to  all 
and  every  construction,  but  it  naturally  becomes  the  more 
important,  the  more  important  the  sphere  in  which  we  have 
to  construe. 

2.  If  no  genuine  construction  of  any  text  whatever  can 
take  place  without  good  faith  and  conscientiousness,  it  is 
most  especially  the   case  with  regard  to   politics  ;    for  no 
human  wisdom  can  possibly  devise  an  instrument  that  may 
not  be  interpreted  so   as  to  effect  any  thing  but  that  for 
which  the  constitution  was  established  and  its  fundamental 
principles  laid  down.     We  gain  nothing  by  verbosity,  or  a 
minute    enumeration  of  details ;    for    a    constitution   is  to 
apply  in  every  sphere  of  political  action  and  hold  good  for 
many  generations.     If  we   attempt,  then,  to    detail   every 
thing  before   hand,  we  only  impede,  fetter,  and  obstruct. 
Experience   has  fully  proved  this.     On  the  other  hand,  if 
the    constitution   contains    only  the    great    principles    and 
general  outlines  of  the   state,  faithless    interpretation    has 
free  play.    Where,  then,  is  the  essential  guaranty  of  liberty? 
No  where,  if  not  in  the  breast  of  the  citizen.     Constitutions 
are  useful,  and  indispensable  in  order  to  arrive  at  a  clear 
understanding  on  the  most  important  subjects  of  society, 
and   a   manly  knowledge  of   that  all-important  element  of 


HERMENEDTIC8.  171 

law  and  civil  liberty  —  the  relation  of  the  individual  to  the 
political  society  in  the  aggregate  —  the  state,  as  well  as  for 
furnishing  to  an  independent  judiciarya  fulcrum  to  rest  its 

lever  on,  in  opposition  to  laws  hostile  to  that  true  rela- 
tion of  the  individual  to  the  state,  and  which  otherwise 
must  crush  the  individual.  But  constitutions  do  not  make 
liberty;  liberty  is  not  decreed  in  so  many  words  on  parch- 
ment. That  parchment,  with  its  ink  upon  it,  may  be  eaten 
by  the  worms,  may  be  torn  by  any  daring  hand.  They  are 
superior  to  such  contingencies  when  they  are  but  the  solemn 
pronouncing  and  expression  of  that  which  lives  within  the 
nation,  the  written  words  of  the  living  essence. 

Under  the  best  constitution,  political  crimes  and  offences 

of  all   sorts  can  easily  be  committed,  as  soon  as  the  spirit 

of  the  people  allows  those  in  power  to  construe  if  for  that 

purpose  ;    and  a  people   animated  by  a  manly  spirit  may 

force  those  in  power  to  construe  an  unfavorable  constitution 

or  a  dangerous  prerogative  custom,  agreeably  to  the  civil 

spirit  which    animates    the  whole    society      Imagine    the 

English    constitution  with    a   lax,  yielding,  degenerate    or 

servile  people.     Is  it  necessary  to  imagine?     Look  at  the 

history  of  Henry  VIII.     What  is  there   that    a    minister 

mio-ht  not  do,  if  he  had  a  mind  to  betray  his  nation  and 

if  the  people  would  let  him   do  it,  without  in  one   single 

instance    acting   against   the    letter  of  the   law    of    Great 

Britain.     So   far  as  the  words  go,  the  privileges    of  the 

crown    are    immense.     The  very  efficiency  of    parliament 

hangs  by  very  slender  threads,  as  to  the  words   or  forms 

of  the  constitution  ;  but  can  a  minister  discard  parliament? 

The  whole  history  of  James  I.  and  his  successor  is  but  one 

continued   commentary  upon   the    tact,  that    faithless  inter- 


172  HEltMENEUTICS. 

pretation  and  construction  will  be  able  to  defeat  the  true 
object  of  almost  any  form  of  words. 

It  is,  as  was  alluded  to  already,  not  otherwise  in  religious 
doctrine.  We  must  do  to  others  as  we  wish  others  to  do 
unto  us.  Faithless  construction  might  say,  I  wish  to  lead 
a  life  of  licentiousness,  and  am  perfectly  willing,  nay, 
desirous,  that  others   should  lead  it. 

Blackstone,  in  the  fourth  volume  of  his  Commentaries, 
in  a  note  to  page  439,  says,  with  great  naivete:  "The 
point  of  time  at  which  I  would  choose  to  fix  this  theoretical 
perfection  of  our  public  laws  is  in  the  year  1679  ;  after  the 
habeas  corpus  act  was  passed  and  that  for  licensing  the 
press  had  expired,  though  the  years  which  immediately 
followed  it  were  times  of  great  practical  oppression."  The 
italicising  is  not  my  own  ;  yet  the  commentator  has  marked 
them  as  if  to  illustrate  the  above  rule. 

The  constitution  of  the  United  States  bestows  upon  the 
president  prerogatives,  which  might  deprive  the  people  of 
all  liberty,  the  moment  they  should  become  indifferent 
enough  to  allow  it.  Nor  do  I  say  that  less  power  ought 
to  have  been  conferred  upon  the  American  chief  magis- 
trate. It  would  be  a  great  mistake  to  suppose  that  any 
thing  would  be  gained  by  merely  tying  the  hand  of  the 
executive  ;  then  the  power  would  be  somewhere  else,  and 
equally  obnoxious  to  abuse. 

3.  The  principle,  that  "the  general  prevails  over  the 
particular,'  is  of  great  importance  with  regard  to  con- 
stitutions ;  it  amounts  to  saying,  that  the  "public  welfare 
is  the  supremest  knv  of  every  country,  is  above  the 
supreme  law."  Even  the  Chinese,  "that  nation  of 
incurable     conservatives."    in    their     four    sacred    books, 


HERMENEUTICS. 


173 


acknowledge    literally   the   principle,    "  salus    populi    su- 
prema  lex."* 

There  can  be  no  construction,  therefore,  contrary  to 
this  law  of  laws,  or  vital  principle  of  every  law,  all 
appearance  to  the  contrary  notwithstanding.  No  pre- 
rogative, no  privilege  can  exist  against  public  welfare; 
but,  in  acknowledging  this,  we  must  take  great  care 
that  we  do  not  fall  into  two  serious  errors.  First,  we 
must  have  a  proper  conception  of  the  public  welfare, 
and  not  understand  by  this  term,  as  is  frequently  the 
case,  only  physical  prosperity,  high  prices,  good  wages, 
flourishing  commerce,  &c,  for  though  these  are  concom- 
itant parts  of  real  public  welfare,  yet  they  are  by  no  means 
its  only  elements,  or  only  tests.  They  have  been,  in  not 
a  few  instances,  the  dangerous  guise  under  which  absolute 
power  and  oppressive  tyranny  have  stolen  into  the  mansion 
of  public  liberty.  Nothing,  indeed,  is  more  common  than 
that  usurpers  promote  industry  and  commerce.  They  are 
generally  wise  men  who  know  the  great  value  of  national 
activity,  and,  apart  from  their  ambitious  plans,  are  fre- 
quently men  of  lofty  and  noble  dispositions,  not  naturally 
inclined  to  harm  others,  though  ready  to  do  so  when 
prompted  by  their  aspiring  views.  Secondly,  we  nm-t 
guard  ourselves  against  mistaking  our  private  views  and 
interests,  our  passions  and  appetites,  for  public  wishes  or 
demands;  in  short,  against  confounding  our  individuality 
with  public  welfare.  This  applies  to  citizens  as  well  as 
rulers,  to  each  one  in  his  sphere,  and  naturally  so,  for  all 
are  the  same  compound  beings. 


*  Davis's  Chinese,  London,  1S36,  vol.  2,  the   chapters    on    L'uuiucius, 
Religion,  &c. 


174  HERMEXEUTICS. 

There  have  been  few  usurpers  or  politieal  transgressors, 
on  a  large  or  small  scale,  who  did  not  protest  that  they 
had  disregarded  the  law  of  the  land,  or  the  acknowledged 
principles  of  civil  liberty,  because  public  welfare  demanded 
the  violation.  It  was  alleged  as  one  of  the  principles  on 
which  Ernest  of  Hanover  founded  his  revolutionary  act 
which  annulled  the  constitution  of  the  land.  Yet  it 
remains  true  on  the  other  hand,  that  those  states  are 
doomed  to  decline  and  fall  to  ruin,  which  endeavor  to 
rule  by  ancient  laws  and  forms  only,  and  obstinately  resist 
the  progress  and  spirit  of  the  age,  as  if  the  public  mind 
could  be  encircled  or  checked  by  oral  or  written  sentences. 

Those  Danes  were  right,  therefore,  who  maintained  that 
that  most  curious  of  all  fundamental  laws,  by  which,  in  the 
year  1660,  the  king  was  made,  by  desire  of  the  people, 
"  hereditary  and  absolute  sovereign,"  and  according  to 
which  no  fundamental  laws  should  have  any  force,  except 
the  one,  that  nothing  should  bind  the  king  —  that  even 
this  law  had  a  meaning  only  by  tacitly  supposing  that  the 
king  would  use  this  power  for  the  welfare  of  the  people.22 

4.  Constitutions  should,  in  ordinary  cases,  be  construed 


»  But  the  same  defence  would  apply  equally  well  to  the  lex  regia,  upon  which  our 
author  has  commented  so  severely,  ante,  p.39,  and  which  has  always  been  so  hateful 
to  the  English  people  that  it  alone  was  regarded  as  an  all-sufficient  argument 
against  the  adoption  of  the  civil  law  in  the  times  when  such  an  adoption  might  be 
regarded  as  a  possibility.  Perhaps  it  is  hardly  fair  to  attribute  the  great  difference 
between  the  careers  and  the  present  positions  of  England  and  Denmark  to  the 
different  attitudes  of  their  people  toward  this  principle,  since  many  causes  have 
combined  to  produce  the  present  power  of  England  and  the  present  weakness  and 
humiliation  of  the  kingdom  of  which  she  was  once,  for  a  short  period,  a  depen- 
dency; but  there  is  abundant  evidence  in  Danish  history  of  the  truth  that  a  people 
which  will  not  mate  the  exertions  and  submit  to  the  burdens  which  form  the  price 
and  condition  of  self-government  and  liberty,  will  look  in  vain  for  welfare  at  the 
hands  of  an  absolute  monarch.  This  statement  may  seem  a  truism,  rather  than  a 
great  truth;  but  it  cannot  be  too  often  repeated  in  a  generation,  of  which  the 
educated  and  wealthy  classes  are  more  alive  to  the  defects  than  the  value  of  free 
institutions.  — Ed. 


HERMENEUTICS.  175 

closely,  because  their  words  have  been  well  weighed,  and 
because  they  form  the  great  contract  or  agreement,  between 
the  people  at  large,  or  between  the  people  and  their  ruling 
race.  It  matters  not,  as  has  been  stated,  if  the  constitution 
declares  that  it  is  a  free  gift  of  the  sovereign's  bounty,  as 
did  the  French  charter  of  Louis  XVIII.  ;  for,  on  the  one 
hand,  as  soon  as  the  people  accept  of  it,  and  as  long  as 
they  insist  on  it,  it  is  a  bond  fide  contract;  and  on  the 
other,  it  is  well  known  that  no  sovereign  grants  a  charter, 
except  when  circumstances  require  it.  The  very  charter 
proves  it. 

5.  The  more  a  constitution  partakes  of  the  character  of  a 
solemn  compact,  the  closer  its  construction  must  be;  for 
we  have  no  right  to  construe  or  interpret  otherwise,  ii 
there  are  several  parties.  Construction  of  federal  consti- 
tutions, therefore,  ought  to  be  close  ;  especially  if  they 
distinctly  pronounce  that  the  authority  and  power  granted 
therein  is  all  that  is  granted,  and  that  nothing  shall  be 
considered  as  granted,  except  what  is  mentioned  :  as  is  the 
case  with  the  constitution  of  the  United  States  of  America 
in  granting  power  to  the  national  government. 

6.  All  the  rules  which  relate  to  precedents  demand 
peculiar  attention  in  the  construction  of  constitutions. 
For,  on  the  one  hand,  one  of  the  great  objects  of 
government  is  security  and  peace,  which  includes  stability, 
by  which  is  meant  not  only  the  absence  of  revolutions,  but 
also  the  certainty  of  rights  and  of  legal  as  well  as  political 
relations  ;  ou  the  other  hand,  an  unfortunate  concurrence 
may  cause  a  law  to  be  passed,  and  the  people  to  acquiesce 
in  it;  yet,  if  every  law  or  measure  adopted  on  the  ground 
of  strong  expediency  were  always  elevated  to  a  principle, 


176  HERMENEUTICS. 

it  would  frequently  thwart  some  of  the  most  important 
objects  of  the  constitution  itself. 

We  should  follow  in  this  particular  the  Digest,  which 
declares,  as  one  of  the  regulce  juris,  Lib.  50,  tit.  17,  162, 
quoted  before,  that  "  That  which  has  been  adopted  from 
necessity  cannot  be  applied  to  similar  cases."  See  farther 
below  on  Precedents. 

7.  Transcendent  construction  may  sometimes  be  resorted 
to,  regretting  the  necessity  which  obliges  us  to  make  use 
of  it,  instead  of  seeking  how  we  may  contrive  to  justify  a 
transgression  of  power,  or  stretch  the  constitution  to  obtain 
it.  We  ought  ever  to  be  mindful  that  every  transcendent 
construction  may  be  the  beginning  of  fearful  inroads. 

8.  As  we  may  interpret  a  will  with  greater  freedom  than 
a  contract,  and  a  contract,  if  it  relates  to  a  few  who  concede, 
more  comprehensively  than  a  law  which  has  general  effect, 
so  we  may  construe  a  law  with  more  freedom  (provided  no 
party  be  injured  thereby)  than  a  constitution  ;  for  the  latter 
contains  the  most  general  rules  applying  to  all.  It  is 
calculated  for  relations  in  which  every  one  has  a  common 
interest ;  and  as  the  interests  common  to  all  in  a  large 
community  must  be  less  in  number  than  those  which  may  be 
equally  shared  between  a  few  persons,  a  strict  adherence  to 
the  constitution  is  necessary  to  maintain  the  universality 
of  its  application  and  secure  uniformity  in  its  effect. 

9.  Seek  for  the  true  spirit  pervading  the  whole  consti- 
tution and  interpret  in  good  faith  accordingly,  provided 
this  spirit  is  in  favor  of  public  welfare,  which  is  not  the  case 
with  all  constitutions,  and  provided  the  instrument  be  not 
irreconcilable  with  the  present  time,  for  instance,  by  having 
been   established  in  past  ages,  and  conceived  in  a  spirit 


HEEMENEI  TI(  8.  177 

which  has  long  been  supplied  by  a  characteristically  different 

one 

Constitutional  history  proves  that  it  is  of  momenl  thai 
the  speaker  of  the  popular  house  should  not  only  be  eligible 
by  the  house,  but  also  be  independent  of  the  crown;  for  a 
speaker  without  considerable  power  impedes,  rather  than 
promotes,  the  business;  but  if  this  influential  person  is 
dependent  upon  the  crown,  the  liberty  and  usefulness  of 
the  house  is  greatly  injured,  as  we  see  illustrated  in  the 
periods  of  the  Jameses  and  Charleses.  The  French  charter 
of  1830, 23  therefore  (article  37),  took  from  the  crown  the 
power  of  confirming  the  president  of  the  deputies,  which  it 
had,  according  to  the  charter  of  1814.  The  speaker  of  the 
British  commons,  however,  must  be  confirmed  by  the 
crown,  according  to  the  received  understanding  of  the 
existing  constitution,  though,  of  course,  the  royal  privilege 
has  not  been  acted  upon  for  a  long  time.  Suppose  a 
minister  should  advise  the  crown  to  disapprove  the 
choice  ot  a  speaker  on  trifling  grounds,  it  would  be  right 
for  the  commons  to  remonstrate,  and  to  justify  their  action 
by  a  most  comprehensive  construction  of  this  privilege, 
namely:  that  it  had  not  been  acted  upon  for  many  years; 
that  it  is  against  the  present  spirit  of  liberty;  that  the 
French  have  seen  tit  to  abolish  it,  and  that  they,  the 
Commons,  have  not  proposed  a  lav/  to  rescind  the  priv- 
ilege of  the  crown  because  its  exercise,  unless  on  \.iy 
momentous  grounds,  was  understood  to  be  antiquated. 


m  The  charter  here  referred  to  will  be  found,  at  length,  in  Appendix  XII.  to  tin- 
author's  Civil  Liberty  (ed.  of  1875),  pp.  545-554,  ami  is  followed  there  by  the  French 
Constitution  of  the  year  1848,  ami  the  Constitution  ami  Senates  Conwltum  .if  1851-2, 
by  which  that  republic  became  a  second  empire.  —  Ku. 

12 


178  HERMENEUTICS. 

It  was  the  misfortune  of  the  French  nobility  that  a  part 
of  them  insisted  upon  their  privileges,  as  established  by  the 
ancient  law,  though  many  of  them  were  excessively  burden- 
some and  galling  to  the  people. 

10.  But  if  the  constitution  itself  provides  for  its  being 
lawfully  changed,  this  necessity  exists  in  a  for  less  degree 
Still  it  exists  ;  the  case  supposed  in  the  previous  paragraph 
is  in  point.  No  constitution  has  easier  remedies  provided 
for  than  the  British,  inasmuch  as  Parliament  is,  according 
to  constitutional  terminology,  "  omnipotent,"  and  a  statute 
may  at  any  time  change  the  most  essential  feature  of  the 
realm.  Parliament  might,  if  public  opinion  would  allow 
them,  abolish  the  habeas  corpus  act  forever.24 

11.  If  the  constitution  acknowledges  the  necessary  rights 
of  the  citizen,  civil  liberty  is  benefited  by  close  interpreta- 
tion as  the  rule  and  comprehensive  as  the  exception  only  ; 
because  the  former  defines  and  settles,  and  thus  allows  a 
distinct  and  traditional  knowledge  of  the  civil  rights  to 
grow  up  and  infuse  itself  deeply,  and  in  a  thousand  direc- 
tions, into  practical  life  ;  so  that  the  body  of  citizens  is 
animated  by  civil  steadiness  and  manliness,  and  a  deep- 
rooted  love  of  justice,  which  teaches  them  to  esteem  each 
other's  rights,  because  they  know  them. 

But  if  civil  liberty  and  security  themselves  have  grown 
up  only  by  continued  comprehensive  construction  in  favor 
of  civil  liberty  of  old  laws,  which,  for  some  reason  or  other, 
are  not  changed,  or  which  it  may  not  even  be  desirable  to 
chamre,  this  comprehensive  construction  is  most  important. 
In  short,  with  a   manly  nation,  let  every  thing  that  is  in 


2*  See  Additional  Note  M,  on  Unwritten  Constitution— Ed. 


HERMENEUTIC8.  179 

favor  of  power  be  closely  construed ;  everything  in  favor 
of  the  security  of  the  citizen  and  the  protection  of  the  indi- 
vidual, comprehensively,  for  the  simple  reason,  thai  power 

is  power,  which  is  able  to  take  eare  of  itself,  and  tends,  by  its 
nature,  to  increase,*  while  the  citizen  wants  protection. 
For  the  same  reason  we  ought  always  to  be  ready  to  con- 
strue comprehensively  in  favor  of  the   independence  of  the 

judiciary  and  against  the  executive:  because  it  is  all- 
important  that  the  judiciary  be  independent,  while  it  has 
none  of  those  many  influential  means  of  the  executive  ;  no 
pageantry,  no  honors  to  bestow,  but  few  salaries  to  dispense, 
no  army,  navy,  orders,  crosses,  titles,  lawns,  or  grants  of 
land  at  its  disposal.  It  rests  only  on  public  opinion — a 
mighty  power,  indeed,  if  it  chooses  to  act,  or  is  not 
crushed.     Hence  it  must  be  shielded. 

An  attentive  observer  of  the  political  course  of  Fiance. 
during  the  last  half  century,  has  probably  nothing  to 
deplore  so  much,  as  the  habitual  unsteady  construction 
put  upon  her  fundamental  laws  by  all  parties,  so  that  few 
debates  occur  in  the  chamber,  on  any  important  subjects, 
in  which  recourse  is  not  had  to  the  very  first  principles  of 
government  which  lie  beyond  the  constitution,  we  would 
almost  say,  to  political  metaphysics.  The  enormous 
administrations  which  preceded  the  Revolution,  as  far  back 
as  that  of  Louis  XIV.  had  rooted  up  every  civil  principle 
and  prevented  any  steady  growth  of  civil  liberty.  Absolute 
governments,  whether  brilliant  or  not,  have  always  thi- 
effect.     Their   nature    causes    it.     If    a   people    trusts    to 


*  Political  Ethics,  vol.  I.  on  Public  Power. 


180  HERMENEUTICS. 

personality,  its  institutions  will  be  undermined.  Louis 
XIV.  was  considered  with  a  feeling  of  national  vanity,  le 
o-raud  inonarque  ;  he  died,  and  in  what  condition  did  he 
leave  France?  The  reign  of  Elizabeth,  which  cannot  be 
denied  to  have  been  glorious,  tried  some  of  England's 
institutions  severely,  because  she  was  so  popular.  James 
came  and  tried  to  do  the  same,  or  exceed  his  predecessor, 
without  having  her  superior  judgment  —  a  revolution 
ensued;  Athens  trusted  to  Pericles  and  his  personal 
qualities  —  great,  indeed  —  and  neglected  her  institutions, 
and  when  death  deprived  them  of  a  Pericles,  they  must 
allow  themselves  to  be  ruled  over  by  a  Cleon,  the  currier. 
The  reio-n  of  Frederic  William  II.  after  Frederic  the  Great, 
mio-ht  even  be  mentioned  as  not  without  bearing  upon  the 
subject. 

Of  the  construction  of  those  two  important  privileges  — 
the  veto  and  the  pardoning  power  —  conferred  by  many 
constitutions  upon  the  chief  magistrate,  I  have  treated  in 
the  second  volume  of  the  Political  Ethics. 

XI.  One  of  the  most  important  subjects  for  interpre- 
tation and  construction  are  international  treaties.  Their 
very  importance  and  the  extensiveness  of  the  subject,  as 
well  as  the  fact  that  it  has  been  treated  of  in  various 
works,  induces  me  to  dismiss  it  here,  after  one  remark 
only,  namely,  that  treaties  being  most  essentially  founded 
upon  good  faith,  for  there  is  no  superior  power  to  enforce 
them,  they  require,  likewise,  most  urgently,  the  same 
principle  in  construing  them.  Happily,  it  has  been 
found  that  it  is  also  the  most  politic  way  of  proceeding. 
Honest   diplomacy  is  vastly  preferable,  even   on    the    mere 


HERMENEUTIC8.  181 

ground  of  expediency, to  that  species  in  which  Louis  XIV. 
was  such  an  unwearied  adept. 

See  Vattel's    Law  of  Nations    chap.  XVII.;    Grotius, 
Puffendorf  and  Wheaton  on  International  Law.25 


-'-  More  recent,  and,  in  some  respects,  still  more  valuable  tre  itises  on  thi 
are:  An  Introduction  to  the  Study  of  International  Law,  by  Theodore  D.  Woolsey, 
late  Resident  of  Tale  College    New  York,  1864.    Fifth  edition,  revised  and  enlarged, 
1879);  and  Commentaries  on  International   Law.bySir  Robert  J.  Phillimore,  now 
judge  of  the  Admiralty  Division  of  the  English  High  Court  of  Justice.— Ed. 


CHAPTER    TIL 

Precedents  — Definition  — Natural  PoAver  of  Precedents  — Power  of  Prec- 
edent in  England  —  Reasons  of  the  Powerful  Influence  of  Precedents  — 
"  Wisdom  of  our  Forefathers  ' '—  Lineal  Assent,  Contemporary  Assent  — 
Great  Force,  for  Good  or  Evil,  of  Precedents  in  Politics  — Reasons- 
Distinction  between  Legal  and  Political  Precedents  — Precedents  of  a 
mixed  Character  —  Precedents  necessary  for  the  Development  of  Law 
for  Civil  Liberty  — They  settle  the  Knowledge  of  what  is  Law- 
Necessary  Qualities  of  sound  Legal  Precedents  — Executive  Acts  are 
no  Precedents,  except  for  Subordinate  Officers,  if  not  against  Law  — 
Fearful  Instance  of  Executive  Precedent  in  the  History  of  the  Star- 
Chamber  — No  Man  shall  take  Advantage  of  his  own  Wrong  — Sound 
Precedents  — Precedents  must  be  taken  with  all  their  Adjuncts  — No 
Precedent  weighs  against  LaAv  and  Right  — Still  less  against  Reason  — 
Precedents  must  not  increase  Public  Power  —  Precedents  must  settle, 
not  unsettle  —  Precedents  may  be  overruled  if  necessary —  The  greatest 
Lawyers  have  done  so,  for  instance,  Lord  Coke. 

I.  Ill  settling  that  which  is  uncertain,  in  law  and  politics, 
and,  to  some  degree,  in  other  spheres  to  construction,  great 
aid  is  derived  from  precedents  and  authorities.  I  shall 
treat  first  of  precedents.1 

A  precedent,  from  prcecedere  to  precede,  to  move  before, 
is  a  case,  which  having  happened  previous,  is  vet  analogous 
to,  or,  in  its  characteristic  points,  the  same  with  another 


i  For  notes  upon  the  subject-matter  of  this  and  the  following  chapter  generally, 
see  Additional  Note  X,  on  Precedent  ami  the  Doctrine  of  Authority  in  the  Law. 
The  editor  lias  thought  it  at  once  more  respectful  to  the  author,  and  more  conven- 
ient for  the  reader,  — at  least,  for  such  readers  as  belong  to  the  legal  profession,  — to 
put  together  his  notes  and  additions  to  the  text  upon  this  subject,  in  the  form  of  a 
single  essay,  rather  than  to  divide  them  among  the  different  passages  of  the  text  to 
which  they  might  seem  more  directly  applicable.  This  arrangement  seemed  the 
more  desirable,  because  he  felt  himself  obliged,  as  a  lawyer,  to  dissent  somewhat 
from  the  fundamental  view  of  the  doctrine  of  precedent  taken  by  Dr.  Lieber,  who 
did  not  belong  to  that  profession.  —  En. 

(182) 


HEBMENEUTICS.  L83 

before  us.     In  law  and    politics,  in  particular,   precedents 
signify  decisions,  proceedings,  or  a  course  of  proceedings, 

which  may  serve  for  a  rule  in  subsequent  cases  of  a  similar 
nature. 

The  important  question  is,  have  precedents  any  binding 
power?  Oughl  they  to  have  any  binding  power  where  it 
has  not  been  settled  that  we  are  to  followthem?  And  if 
they  bind  in  any  case,  why  and  under  what  circumstances? 
Before  these  questions  can  be  answered,  it  is  necessary  to 
look  into  the  nature  of  precedents. 

II.  Precedents  possess  a  natural  power,  that  is  to  say, 
we  find  that  they  every  where  exercise  a  considerable 
influence  upon  the  judgment  of  men,  m  private  as  well  as 
public  life;  it  is  now  and  always  has  been  the  case, with 
barbarous  tribes  as  well  as  civilized  nations.  If  a  child  is 
chid  for  some  act  or  other,  it  thinks  to  find  some  exten- 
uation, if  it  can  assert  that  another  child  has  done  the 
same.  When  the  ministers  of  Louis  Philippe,  king  of  the 
French,  a  few  years  ago  issued  an  ordinance  respecting 
the  erection  of  some  fortifications  around  Paris,  they  cited 
a  similar  one  issued  as  early  as  under  Louis  XIY.  The 
most  absolute  chiefs  of  semi-civilized  tribes  are  pleased  to 
find  rules  for  their  acts,  in  the  examples  real  or  pretended 
of  their  forefathers.  Few  arguments  have  a  greater  weight 
with  all  early  nations,  than  the  assertion  of  some  old  and 
experienced  man,  that  he  remembers  the  father  or  grand- 
father of  the  chief  or  king  to  have  acted  thus  or  so  in  a 
similar  case.  Hardly  any  measure  of  government  is 
recommended  by  the  administration  papers  in  free  countries, 
without  pointing  to  a  similar  and  previous  case;  and  if  no 
argument    can   be    found   to    make    an    unpopular   measure 


184  HERMENEUTICS. 

palatable,  or  to  extenuate  some  act  of  the  executive,  this 
one  of  recurring  to  previous  cases,  if  argument  it  can  be 
called,  is  sure  to  be  resorted  to.  When  the  British 
commons  struggle  with  their  king  for  liberty,  nothing 
gives  them  so  firm  and  solid  a  support  as  the  ability  to 
stand  upon  a  precedent.  On  what,  indeed,  did  the 
commons  rest  their  rights  in  the  beginning  of  their  great 
struggle  with  Charles  I.,  except  on  precedents?  So 
powerful  is  precedent  in  that  country,  foremost  in  the 
history  of  constitutional  development,  that  in  high 
constitutional  questions  of  the  use  of  power,  the  absence 
of  precedents  is,  frequentty,  of  equal  weight  in  condemn- 
ing. When  Earl  Danby,  under  Charles  II.,  was  impeached 
of  high  treason  and  pleaded  the  king's  pardon  in  bar  of 
the  same,  the  commons  alleged  "that  there  was  no 
precedent  that  ever  any  pardon  was  granted  to  any 
persons  impeached  by  the  commons  of  high  treason,  or 
other  crimes,  depending  the  impeachment,"  and  thereupon 
resolved,  "that  the  pardon  so  pleaded  was  illegal  and 
void,  and  ought  not  to  be  allowed  in  bar  of  the  impeach- 
ment of  the  commons  of  England;"  but  they  supported 
their  resolution  by  the  reason,  "that  the  setting  up  a 
pardon  in  bar  of  an  impeachment,  defeats  the  whole  use 
and  effect  of  impeachments ;  for  should  this  point  be 
admitted,  or  stand  doubted,  it  would  totally  discourage 
the  exhibiting  any  for  the  future ;  whereby  the  chief 
institution  for  the  preservation  of  government  would  be 
destroyed."*     On  the  other  hand,  no  claims  of  the  crown 


*  Soon  after  the  revolution  of  1G88,  the  commons  renewed  their  just 
claim,  and  at  length  it  was  enacted,  12  and  13  William  and  Mary,  c.  2, 
that  no  pardon  under  the  great  seal  of  England  shall  be  pleadable  to  an 


HEIt.MEXEUTICS.  185 

were  so  powerful  at  the  most  critical  periods  for  British 
liberty,  as  those  supported,  iu  truth  or  pretence  only,  by 
precedents. 

Whence  docs  this  natural  and  universal  influence  and 
authority,  often  salutary,  often  fearful,  ascribed  or  tacitly 
yielded  to  precedents,  arise?  From  various  reasons,  as 
the  following  may  show. 

III.  By  citing  a  precedent,  we  at  once  become  followers 
and  cease  to  be  leaders  ;  our  responsibility,  therefore,  seems 
to  be  divided,  or  at  any  rate  it  is  shared  by  some  one  else. 
We  no  longer  appear  as  innovators  ;  there  are  at  leasl  two 
that  have  done  the  same  thing.  On  doubtful  points  of  high 
importance,  especially  in  constitutional  matters,  we  may 
by  a  precedent,  leave  the  high  seas  of  theory,  and  casl 
anchor  in  the  solid  ground  of  practical  life.  We  moor  in 
reality;  and  it  requires  an  additional  power  to  weigh 
anchors,  which,  for  good  or  evil,  have  buried  their  tlukes 
in  substantial  ground. 

If  nothing  disapproving  has  been  said  or  done,  when  a 
measure  took  place,  we  construe  silence  into  tacit  assent, 
tacit  permission.  Of  many  actions,  however,  we  can,  from 
their  nature,  know  only  that  they  have  been  done,  but  not 
what  opposition  they  have  met  with.  Here  the  want  of 
knowledge  that  they  were  opposed,  makes  it  appear  to  us 
that  the}^  received  a  tacit  assent. 

We  all  feel,  that  if  we  were  never  to  build  upon  what  has 


impeachment  by  the  commons  in  parliament.     The  American  constitutions 
deprive  the  magistrate,  who  is  invested  with  the  pardoning  privilege  Eor 

common  cases,  of  the  same  in  several  cases  touching  sentence--  in  conse- 
quence of  inr)L'achments. 


1 8(3  HERMENEUTICS. 

been  established  and  decided,  but  were  to  begin  in  every 
single  case  entirely  anew,  progress  in  any  sphere  of  action 
would  be  impossible. 

We  honor  our  parents  and  the  aged,  because  the  proba- 
bility of  greater  experience  is  in  favor  of  them  —  a  manner 
of  reasoning  of  especial  force  in  those  periods  in  which 
nearly  the  whole  store  of  public  experience  is  traditionally 
handed  down,  or  has  to  be  gathered  by  personal  experience 
throuo-h  a  Ions;  life  — in  short,  when  books  have  not  yet,  in 
a  considerable  measure,  supplanted,  if  not  individual  expe- 
rience, for  that  they  never  can,  yet  knowledge  of  public 
matters,  individually  gathered. 

We  feel  too  that  there  is  prima  facie  evidence  in  favor  of 
the  expediency  of  the  old  law,  for  what  has  Listed  so  long 
should  be  supposed  not  to  be  inexpedient.  Fortescue,  in 
the  seventeenth  chapter  of  his  work,  De  Laudibus  Legg. 
Ano-1.,  has  a  lono;  argument,  that  the  English  laws  are  the 
best  because  the  oldest.2 

As  to  the  first,  however,  we  must  guard  ourselves  against 
a  common  error,  namely,  of  extending  the  belief  in  that 
wisdom  which  we  naturally  ascribe  to  persons  older  and 
more  experienced  than  ourselves,  and  especially  to  our 
parents  and  grandparents,  in  a  progressively  higher  degree, 
to  their  parents  and  grandparents  also,  in  short,  to  our 
forefathers;    though    their   lives,    and    consequently  their 


"-  See  also  Lord  Coke's  Prefaces  to  the  Second  and  Sixth  Reports,  where  he  has 
adopted  Fortescue's  extravagant  assertion,  that  the  laws  of  England  had  remained 
unchanged  from  the  times  of  British  independence  (before  the  Roman  conquest), 
and  attempts  to  sustain  it  by  proofs.  It  is  quite  needless  now  to  meet  such  vagaries 
by  argument;  but  Mr.  Amos  has  done  it  in  one  of  his  excellent  notes  to  Fortescue 
(Clarke's  Am.  ed.,  pp.  5'2,  56),  with  some  very  judicious  criticisms  on  the  older 
writers.  Of  course,  the  incorrectness  of  Fortescue's  facts  does  not  affect  the  argu- 
ment, in  support  of  which  Dr.  Lieber  has  referred  to  him.  —Ed. 


HEBMENEUTICS.  1  s  < 

opportunity  for  gathering  experience,  may  have  been  much 
shorter  than  ours  has  already  been.     This  error  is  attrib- 
utable to  u  confusion  of  ideas.      One  who  is  called  old   may 
be  a  living  old  man,  who  may  have  more  experience  than  a 
young  one;  but   the  term  may  also  apply  to  past  genera- 
tions which,   if  all  the   other  circumstances  are  the  9ame, 
cannot  possibly  have  had  an  equally  favorable   opportunity 
tor  experience  with  ourselves.     We  arc,  indeed,  as  to  expe- 
rience, the   old   ones,  and  the   past  generations  the  young- 
ones,  provided  all  the  opportunities  are  the  same,  or  we  do 
not  throw  away  the  experience  of  past  ages  by  neglecting 
faithfully  to  study  them  ;   for  in  this  case,  it  is  very  evident. 
we    become    again    the    "younger    ones."       Tacitus    say- 
already:    "Nee  statim  deterius  esse  quod  diversum  est: 
vitio   autem   malignitatis  humanse  Vetera  semper  in  laude, 
prsesentia   in  fastidio    esse."*     Equally  erroneous  it  is   if 
unexperienced  arrogance  believes  that  every  idea  which  has 
newly  occurred  to  the  individual  is,  on  that  account,  new 
altogether  and  excellent:  as  if  for  it  the  great  problem  of 
each  day  were  to  nullify  all  history  up  to  that  day.      I  have 
dwelt   on   this   important   point   of  political    ethics   in   the 
second  volume  of  the  work  on  that   subject,8  and  only  add 
here  that  the  "  wisdom  of  the  forefathers"  may  be  a  sen- 
tence   of   sound   sense,    or    an    empty   sound.      It   depends 
entirely  upon    the    fact,   what    forefathers   we    mean,    and 
whether  they  had  a    favorable,    opportunity  to    know  much 
upon  the  point  in  discussion.     It  frequently  happens,  that 


*  Dial,  xviii.     Also,  Velleius   ii.   92.     See  also  Sir  Thomas   Browne, 
Vulgar  Errors,  Adherence  unto  Antiquity. 

••>  See  Political  Ethics,  Boo*  III.,  cli.  7,  vol.  II.,  pp.  9S-107  of  second  edition,  edited 
by  Dr.  Woolsey.    Phila.,  is7j.  —  Ed. 


188  HERMENEUTICS. 

a  fundamental  law  of  a  country  is  adopted  at  a  period  when 
universal  enthusiasm  renders  purity  of  action  more  common 
than  is  the  case  in  easy  times,  when  self-devotion  is  little 
called  for  and  selfishness  diffuses  itself  in  all  classes.  Thus 
it  was  a  great  epoch  when  the  American  colonies  declared 
themselves  free,  and  there  can  be  no  doubt  that  there  was 
more  self-devotion  in  that  congress  at  Philadelphia  than  in 
our  easy  times  will  be  found  in  an  equally  large  number  of 
men.  Those  times  were  more  exciting  to  virtue,  and  if  we 
speak  of  the  patriotic  signers,  there  is  truth  in  the  expres- 
sion "  wisdom  of  our  fathers."  Not  that  they  were  better 
organized  beings,  for  the  favorite  saying  of  Lord  Nelson, 
that  there  are  as  good  fish  left  in  the  sea  as  have  come  out 
of  it,  is  very  true,  but  the  combination  of  circumstances 
was  more  favorable. 

As  to  the  second  point,  the  antiquity  of  laws,  it  alto- 
gether depends  upon  the  fact,  whether  they  are  good  or 
not.  Tonnage  and  Poundage,  the  ruin  of  Charles  I.,  were 
first  granted,  for  the  life  of  the  prince,  to  Henry  V.,  as  a 
recompense  for  recovering  his  right  to  France,  but  under  a 
special  proviso  that  it  should  not  be  held  as  a  precedent  in 
the  case  of  future  kings:  "But  yet,"  says  Sir  Edward 
Coke,  "all  the  kings  after  him  have  had  it  for  life,  so 
forcible  is  once  a  precedent  fixed  in  the  crown,  add  what 
proviso  you  will.* 

An  old  law,  moreover,  has  left  a  beaten  track,  it  has  all 
the  force  of  custom  and  habit,  which  form,  in  all  spheres  of 
human  life,  strong  reasons  to  adhere  to  that  which  is 
already  established.     That  which  is  new  is  disturbing  and 


*  2d  Inst.  p.  61.     4th  lust.  p.  32. 


HEEMENEUTICS.  189 

distracting.     These  reasons,  natural  in  themselves,  operate 
sometimes  mosl  mischievously. 

When  Sir  S.  Roinilly  proposed  to  abolish  the  punishment 
of  death  for  stealing  a  pockel  handkerchief,  the  commons 
of  England  consulted  Sir  J.  Sylvester,  the  recorder,  and 
Mr.  S.  Knowles,  the  common-sergeant,  as  1<>  the  proposed 
improvement.  They  answered,  "that  such  an  alteration 
would  endanger  the  whole  criminal  law."  The  common 
objection  to  any  melioration,  by  those  who  disrelish  it. 

IV.  Further  reasons  for  the  force  of  precedents  or  of 
that  which  exists  already,  are,  that  in  politics  and  law,  that 
species  of  assent  which  might  be  called  lineal  assent,  in 
contradistinction  to  contemporaneous  assent,  lias  a  different 
force  from  what  it  has  in  history.  For  the  question  in 
politics  and  law  is  about  the  continued  action  of  a  principle, 
and  if  such  action  has  been  assented  to  for  generations,  we 
must  believe  there  is  good  ground  for  the  principle  and 
receive  it  as  operating  presently  ;  unless  we  see  sufficient 
and  clear  reason  why  we  should  set  it  aside;  for  instance, 
because  times  have  changed,  or  assent  was  not  free  and 
voluntary.  In  history,  it  disposes  us  in  favor  of  a  state- 
ment, if  it  is  proved  that  its  truth  was  universally  admitted 
at  the  time.  I  say  it  inclines  us  favorably,  but  it  by  no 
means  affords  sufficient  proof:  as  history  or  even  the  affairs 
of  common  life  frequently  prove.  Many  high  personages 
who  died  suddenly  have  been  universally  supposed,  at  the 
time,  to  have  been  poisoned.  But  the  lineal  assent  is  of 
itself  of  no  value  whatever  in  history.  If  a  statement  he 
originally  made  in  such  a  way,  that  it  excites  our  suspicion, 
oris  deprived  of  the  force  of  substantial  proof,  it  becomes 
no   more   probable,  by  the  most  implicit  belief  of  ever  so 


190  HERMENEUTICS. 

many  centuries.  If  it  can  be  proved,  that  some  statement 
with  regard  to  the  foundation  of  Rome  is  highly  improbable, 
or  involves  an  impossibility,  it  matters  not  whether  Livy 
believed  it  or  not,  or  whether  the  middle  ages  believed 
Livy,  or  whether  it  has  been  repeated  by  many  thousand 
authors  relying  upon  Livy  or  those  who  subsequently 
believed  him.  The  number  of  assenters  is  of  some  value 
with  regard  to  contemporaries,  but  of  none  whatever  in 
successive  generations,  unless  the  original  statement  has 
been  subjected  to  continually  renewed  criticism.  In  this 
case,  the  degree  of  our  assent  is  regulated  by  the  keenness 
and  sincerity  of  subsequent  criticism,  and  not  by  the  fact 
that  many  successive  generations  have,  or  have  not,  believed 
in  the  first  statement.  Another  instance  is  the  belief  in 
one  Homer.  If  it  is  proved  that  the  poems  heretofore 
ascribed  to  Homer  cannot  have  been  produced  by  one  poet,, 
but  must  be  a  collection  of  poems  by  various  authors,  all 
the  belief  of  the  many  generations  in  one  Homer  has  no 
weight. 

But  with  a  nation,  with  whom  liberty  has  been  a  practical 
question  for  centuries,  and  with  whom  it  has  been  long 
acknowledged  that  the  stability  of  the  law  is  one  of  the 
main  ingredients  of  civil  liberty  —  a  nation,  moreover,  who 
did  not  receive  the  substance  of  civil  liberty  from  some 
other  country,  but  developed  it  gradually  itself,  as  the 
English  have  done,  the  precedent  must  acquire  a  peculiar 
force.  British  civil  liberty  is  so  powerful  a  thing,  because 
each  important  question  has  come  before  the  commons  as  a 
practical' case.3     Law,  it  was  acknowledged  by  all,  should 


*  The  same  principle  has  been  of  the  greatest  value  in  our  private  law,  which 
recognizes  no  decision  of  a  doubtful  question  until  an  actual  case  arises  between 


HERMENEUTIC8.  191 

decide;  but  what  was  law?  The  people  had  nothing  hut 
the  precedent  to  protect  themselves  againsl  encroachment 
in  the  name  of  law,  and  though  precedents  worked  fear- 
fullv,  in  mam'  cases,  for  the  crown,  yet  I  believe  no  historian 
will  hesitate  to  acknowledge  that  one  of  the  most  essential 
elements  el"  Anglican  liberty,  is  Precedent.  The  very  facl 
that  something  —  no  matter  what — beyond  the  reach  of 
power  was  acknowledged  as  law  between  the  power  and 
the  people,  was  a  great  principle,  not  to  speak  of  the 
immense  power  which  a  citizen,  struggling  for  a  good  cause, 
has  when  he  can  stand  upon  precedent  opposite  to  power. 
The  air  of  revolutionary  innovation,  of  rebellious  resistance, 
is  wholly  taken  from  his  act,  and  the  charge  of  revolution 
is  thrown  on  the  other  party.  The  king  and  his  servant-. 
therefore,  judged  correctly  when  they  resolved  upon  the 
arrest  of  Sir  Robert  Cotton,  the  antiquarian,  because  he 
furnished  the  leaders  of  the  popular  party  with  precedents.* 
They  knew  how  irresistible  a  power  was  latent  in  those 
dusty  papers  ;  how  mighty  history  is  with  a  constitutional 
people  which  has  worked  for  its  liberty. 

Precedents,  like  every  other  thing,  may  be  sadly  misap- 
plied. The  most  absurd  as  well  as  the  most  criminal 
political  acts,  are  propped  with  precedents.  The  corrected 
calendar  of  Pope  Gregory  XIII.  was  opposed,  among  other 
reasons,  because  to  correct  or  change  it  was  claimed  as  an 
imperial  privilege,  because  Caesar  had  first  put  it  in  order, 
and   Constantino  ordered   the  calculation  of  the  feast  of 


*  Brodie,  II.  p.  155. 


parties  involving  it.  See  quotation  from  Western  Jurist,  in  note  9,  ante,  pp.  32,  33. 
The  courts  will  not  hear  a  fictitious  case,  even  though  brought  on  a  real  demand, 
with  a  secret  object.    Coze  v.  Phillips,  0  L'etersdorff,  ICO.  —  Ed. 


192  HEIiMENEUTICS. 

Easter  to  be  made  at  Nicoea  s  And  the  history  or  special 
law  of  cities  and  communities,  shows  that  most  of  the 
strangest  and  exorbitant  privileges  claimed  by  individuals 
or  communities  over  others,  are  founded  upon  nothing  else 
but  precedents,  that  is,  mere  facts.  A  feudal  lord  extorts 
from  a  community  so  many  bushels  of  grain  in  one  year, 
therefore,  he  has  a  right  to  demand  it  the  next.5 

It  is  very  necessary,  then,  that  we  should  ascertain  what 
precedents  have  binding  power,  and  how  far  the}7  have  it. 

When  Alexander  had  taken  Gaza,  after  a  gallant  and 
protracted  defence  by  Betis,  he  caused  the  body  of  the  slain 
enemy  to  be  dragged  at  the  wheels  of  the  royal  chariot 
round  the  walls,  adducing  the  precedent  of  his  "  progenitor," 
Achilles.  The  savageness  of  the  act  was  not  lessened  by 
the  Homeric  precedent. 

V.  Before  we  proceed,  however,  it  is  necessary  that  we 
should  make  a  clear  distinction  between  legal  and  political 
precedents,  the  neglect  of  which  has  led,  at  times,  to  very 
erroneous  and  dangerous  notions. 

A  precedent  in  law,  or,  as  it  is  called,  a  legal  precedent, 
is  a  decision  arrived  at  after  patient  inquiry,  into  all  points 
bearing  upon  the  doubtful  subject,  by  an  impartial  judge, 
who  stands  between  or  above  the  two  parties,  and  is 
removed  beyond  the  circle  of  interests  within  which  the  two 
litigating  parties  move.  A  legal  precedent,  therefore,  is 
the  settling  of  a  doubtful    point,   by  that  very  authority 


6  The  story  is  told  that  not  long  ago  the  reforming  eye  of  the  present  czar  of 
Russia  found  a  useless  sentinel  in  the  midst  of  a  lawn,  and  ordered  inquiry  to  be 
made  as  to  the  reason  of  his  being  there.  It  was  found  that  a  century  ago  the  em- 
press had  a  fruit  tree  there,  and  set  a  soldier  one  day  to  guard  the  ripening  fruit. 
Empress,  fruit,  tree,  had  all  long  ago  disappeared,  but  the  force  of  precedent  had 
kept  up  the  daily  detail  of  a  sentinel  for  the  place.  —Ed. 


HERMENEDTICS.  L93 

which  is  created  by  society,  among   other    things,  for  the 

settling  of  doubts  between  different  parties.  Society  has 
no  better  way  of  making  clear  and  stable  that  which  was 
doubtful  and  unsettled.  It  is  evident  that,  as  long  as  there 
is  no  positive  reason  why  we  should  deviate  from  it,  we 
should  adhere  to  such  a  legal  decision.  Nor  is  it  in  any 
way  desirable  that  in  all  matters  of  legal  doubt  the  highest 
legislative  authority  should  be  appealed  to,  as  is  the  case  in 
many  European  states.  This  leads  to  a  continued  and 
injurious  intermeddling  of  the  executive  with  the  law, 
fetters  the  independence  of  the  judiciary  (one  of  the  very 
elementary  requisites  for  all  liberty),  and  throws  an  imped- 
iment in  the  wa}T  of  a  free  and  wholesome  development  of 
the  law,  according  to  the  spirit  of  the  nation.  Nor  is  it 
possible  for  high  authorities  to  establish  general  rules  which 
will  apply  so  precisely,  to  the  endless  variety  of  combina- 
tions in  law,  as  the  authority  of  precedents  is  able  to  do,  if 
rationally  limited  and  not  carried  to  an  idolatry  of  the  past 
or  the  established. 

As  the  opposite  to  legal  precedents,  we  may  consider 
measures  of  the  executive.  They  differ  in  their  very 
character  from  the  former.  They  are  not  the  decision 
made  between  two  parties  by  a  third  and  impartial  one; 
they  are  nothing  but  acts.  They  may  be  good  or  bad  ; 
they,  like  any  other  acts,  cannot  become  better  bjr  repe- 
tition, if  they  are  bad  in  the  beginning. 

Lastly,  precedents  may  be  of  a  somewhat  mixed  char- 
acter ;  they  may  neither  have  judicial  impartiality,  nor,  on 
the  other  hand,  be  mere  acts.  Many  legislative  acts  are 
examples  of  this  kind.  Inasmuch  as  measures  are  debated, 
before  being  adopted  by  a  legislative   assembly,  we   may 


194  HERMENEUTICS. 

compare  its  action  to  the  balancing  of  the  opposite  inter- 
ests in  court ;  but  inasmuch  as  the  legislative  assembly 
does  not  judge  of  an  occurring  case  according  to  prescribed 
laws,  but,  on  the  contrary,  is  making  these  very  laws,  and 
inasmuch,  also,  as  the  different  interests  are  represented 
in  an  assembly  of  this  kind,  by  two  different  parties,  indeed, 
but  very  frequently  not  impartially  weighed  by  the  same 
persons,  their  decisions  partake  of  the  character  of  meas- 
ures and  acts,  such  as  we  have  mentioned  already.6 

VI.  We  have  already  seen,  that  no  human  wisdom  can 
contrive  to  make  laws  which  will  precisely  cover  all 
complex  cases  that  may  occur,  whatever  attention  may 
be  paid  by  the  law-makers  to  the  variety  of  compound 
cases,  which  they  are  able  to  imagine;  and  that  it  is  not 
in  the  power  of  any  human  intellect,  though  of  the  most 
comprehensive  grasp,  to  draw  up  a  political  constitution, 
so  as  to  leave  untouched  no  case  which  can  appear  doubtful, 
considering  the  condition  of  societ}^  at  the  time  of  its  being 
drawn  up.*     As  to  future  generations,  the  problem  becomes 


*  The  words  of  President  Madison,  quoted  by  President  Harrison  in  his 

s  The  force  of  the  distinction  here  pointed  out  by  the  author  between  legislative 
and  judicial  action,  is  very  plainly  seen  in  those  cases  where  a  legislative  body  is 
called  upon  to  pass  bills  which  are  in  substance  adjudications  upon  private  rights, 
as  is  often  the  case  with  private  acts  of  parliament.  The  English  parliament,  by 
which  this  power  is  very  largely  exercised,  without  restraint  from  any  written  con- 
stitution upon  its  power  to  affect  or  even  take  away  private  rights  of  property,  etc.,— 
but  which  has  also  displayed,  perhaps  for  that  very  reason,  a  laudable  anxiety  to  do 
exact  justice  to  all  persons  interested  in  such  cases,  — has  been  obliged  to  frame  and 
enforce  a  code  of  rules  for  its  own  action  as  minute  and  technical  as  those  by  which 
an  ordinary  court  of  justice  is  governed.  Parties  interested  must  be  duly  notified, 
proof  made  of  the  regularity  of  every  step  taken,  the  provisions  of  the  bill  sub- 
jected to  the  most  rigid  scrutiny,  with  opportunity  for  all  sides  to  be  heard,  etc.,  etc. 
Full  details  of  the  practice  in  such  cases  will  be  found  in  Dwarris  on  Statutes,  I.  350- 
497.  It  were  much  to  be  desired  that  some  safeguards  of  the  kind  could  be  thrown 
arouud  American  legislation  beside  those  furnished  by  our  constitutions,  which 
usually  protect  vested  rights  only  by  annulling  the  work  of  the  legislature.  —  Ed. 


]  IK  KM  KM-;  I   I  I<   -.  11  ■> 

still  more  impracticable  ;  because  the  state  <>f  human  society 
is  continually  changing,  and  oughl  to  change,  according  t<> 
its  very  principles  of  existence.  This  is  :i  rule  so  well 
established  that  statesmen  ami  lawyers  are  now  agreed 
upon  the  wisdom  of  pointing  out  principles  ami  drawing 
general  outlines  in  a  clear  and  easily  understood  Language, 
in  constitutions  and  laws,  rather  than  giving  minute  details, 
which,  in  whatever  degree  we  may  augment  the  enumeration 
of  minutiae,  have  a  tendency  rather  to  contract  than  to 
extend.*  It  is  far  easier  to  act  upon  laws,  in  a  manner 
corresponding  to  the  intention  of  the  legislator,  when 
they  are  brief  and  clear,  and  rely  upon  common  sense, 
than  when  the  details  embarrass  every  step,  and  prevent 
the  application  of  the  general  principle,  when  the  specific 
case  has  not  been  enumerated  and  singled  out  l>y  the  law- 
maker. 

As  it  is,  however,  a  well-known  maxim  in  polities  and 
jurisprudence,  that  the  certainty  of  law  is  next  in  impor- 
tance to  its  justice  —  and  by  certainty  of  law  we  understand 


Inaugural  Address,  March  4,  1841,  ought  not  to  be  omitted  here.  The 
latter  said:  "I  believe  with  Mr.  Madison  that  repeated  recognitions  under 

varied  circumstances,  in  acts  of  the  legislative,  executive,  and  judicial 
branches  of  the  Government,  accompanied  by  indications  in  different 
modes  of  the  concurrence  of  the  general  will  of  the  nation,  *  *  *  as 
affording  to  the  President  sufficient  authority  for  Ids  considering  such 
disputed  points  as  settled." 

*  I  found  on  the  wall  of  a  humble  tailor's  shop,  in  Warwick-hire,  these 

words  in  large  letters  :  — 

Tight  will  tear; 

Wide  fill 

The  sartorial  wisdom  made  an  impression  upon  me  that,  now  when 
writing  on  constitutions  of  states  and  empires  the  six  words  on  that  wall 
recur  to  inv  mind. 


Ut)  HKRMENEUTICS. 

both  that  it  be  well  defined,  known  and  unwavering,  as 
also  that  its  penalties  fall  with  unerring  certainty  upon 
those  who  deserve  them  —  it  becomes  necessary  that 
doubtful  points,  springing  up  from  a  new  state  of  things, 
should,  if  once  settled,  be  considered  so,  until  a  weighty 
reason  induces  us  to  deviate  from  the  settled  decision. 

VII.  If  the  precedent  is  deprived  of  that  weight  which 
according  to  the  foregoing  pages  ought  to  be  allowed  to  it, 
civil  liberty,  which  depends  in  so  high  a  degree  upon  a 
universally  diffused  knowledge  of  rights  and  obligations, 
as  well  as  upon  the  stability  of  government  (for  instability 
of  government  engenders  civil  immorality),  becomes  impos- 
sible. A  citizen,  conscientiously  desirous  of  doing  right, 
can  obtain  no  advice  from  the  counsel,  whose  profession 
consists  in  the  knowledge  of  the  laws,  in  any  complicated 
case,  if  the  lawyer  himself  does  not  know  a  certain  general 
rule,  or  law,  which  may  be  applied  to  the  compound  case 
under  consideration.  Hence,  too,  we  find  that  the  citizens 
of  those  countries,  in  which  public  liberty  has  been  highly 
prized,  require  their  rulers  to  swear,  before  they  assume 
the  highest  power,  that  they  will  govern  according  to  law 
and  custom ;  and  custom  is  but  precedent.  Some  of  the 
gravest  charges  against  impeached  ministers,  or  of  revolted 
subjects  against  their  monarchs,  have  been,  that  the  accused 
individuals  had  disregarded  the  customs  of  the  land. 

Without  due  regard  for  precedents,  no  development  and 
expansion  of  any  fundamental  law,  that  is,  no  expanded 
application  of  the  principles  it  contains,  commensurate  with 
the  expansion  of  society  and  the  change  and  progress  of  all 
relations,   can   possibly  take  place.     If  nothing    becomes 


IIKKMKN  EUT1CS.  197 

settled,  disorder  must  be  the  consequence.  Words  may 
mean  very  indefinite  things;  it  is  by  practice  only,  thai 
they  acquire  definite  significations.  Is  not  this  the  case 
between  friends,  or  men  brought  together  in  any  collegiate 
relation?  It  is  still  more  the  case,  in  the  great  political 
intercourse  of  citizens. 

"  The  King  willeth  that  right  be  done,  according  to  the 
laws  and  customs  of  the  rcalme,"  &c.  The  Bang's  A.nswer 
to  the  Petition  of  Rights,  Kush worth,  T.  1,  p.  590.  The 
king  of  Great  Britain  swears,  at  his  coronation,  to  govern 
"according  to  the  statutes  in  parliament  agreed  on,  and 
the  laws  and  customs  of  the  same." 

VIII.  In  a  free  country,  then,  where  a  Knowledge  of 
the  citizen's  rights  is  all  important,  a  precedent  in  law,  if 
correctly  and  clearly  stated  —  this  is  an  essential  requi- 
site—  and  if  applied  with  discernment,  and  with  the  final 
object  of  all  law  before  our  eyes,  ought  to  have  its  full 
weiffht.  If  there  has  been  a  series  of  uniform  decisions 
on  the  same  point,  they  ought  to  have  the  force  of  law, 
because  in  this  case  they  have  become  conclusive  evidence 
of  the  law.     (See  Dupin's  Jurisprudence  ties  Arrets.)*  7 

In  politics,  we  ought  to  follow  precedents,  which   touch 


*  The  reader  will  find  this  subject  treated  much  more  at  large  in  ray 
Civil  Liberty.  As  a  matter  of  historical  interest,  it  may  lie  mentioned 
that  Lord  Campbell  says,  p.  471,  vol.  II.,  hives  of  the  Chancellors,  that 
decisions  in  Chancery  were  not  considered  as  precedent-,  under  James. 
Equity  was  not  yet  considered  as  a  system  of  jurisprudence.  [See  civil 
Liberty,  thin!  edition,  by  Dr.  Woolsey.  Phila.,  L875,  pp.  208-LM4  and 
27(J,  277.  — ED. 

J  Forms  the  concluding  part  of  that  author's  Manuel  des  Etudiants  en  Droit  (pp. 
377-539,  of  ed.  Bruxelles,  1835).  Those  who  Buppose  thai  the  use  of  reports  of 
decisions  is  peculiar  to   English  and  American  law,  and  was  formerly,  if  not  ai 


1U8  HERMENEUTICS. 

upon  matters  of  law,  or  which  partake  decidedly  of  the 
character  of  legal  decisions  upon  previously  doubtful 
points,  as  long  as  we  have  no  decided  and  obvious  reasons 
why  we  should  deviate.  As,  however,  most  important 
questions  in  politics  touch  upon  those  broad  and  original 
principles  upon  which  the  protection  of  the  citizen  and  the 
security  of  the  state  mainly  depend,  it  will  be  found  that 
precedents  in  this  sphere  will  have  far  less  authority  than 
in  law.  It  is  the  essential  duty  of  a  lawgiver  and  states- 
man to  act,  always,  on  distinct  political  principles  and 
reasons,  and  to  recur  to  them  in  every  single  case.  A 
deviation  from  these  principles  involves  a  world  of  in- 
jury- 
It  seems  that  an  imperfection  of  law,  loses,  in  numerous 
cases,  much  of  its  evil  character,  merely  by  the  fact  of  its 
being  universally  known  ;  as  a  piece  of  rock,  which  has 
fallen  into  a  road,  is  certainly  an  inconvenience,  but  if  all 
the  people  who  are  in  the  habit  of  travelling  that  road 
know  that  this  obstruction  is  in  their  way,  they  will  avoid 
it,  and  a  travelled  road  will  form  itself  around  it.  Its 
inconvenience  is  greatly  lessened  by  its  being  stationary 
and  known  ;  if,  however,  that  piece  of  rock  were  frequently 
moved  to  different  places,  the  injury  to  every  traveller 
would  be  in  proportion  to  his  ignorance  of  its  locality. 
Blasting  the  rock  into  atoms  would  be  the  best  course ; 
but,  perhaps,  it  cannot  be  conveniently  done,  without 
injury  to  the  interests  of  others,  or,  at  any  rate,  those 
who  travel  the  road,  may  not  have  the  means  or  the 
right  of  doino-  it. 


present,  unknown  to  the  civilians,  should  read  this  admirable  little  treatise,  and 
also  the  preface  (proloqiiium)  of  J.  H.  Bohmer  to  his  (10(h)  edition  of  the  Decisions 
of  Mevius  (Frankfort,  1791,  2  vols.,  8vo.)-    See  also  Additional  Note  X post.  —  Ed. 


HERMENEUTICS.  L99 

This  applies  to  law;  in  politics  proper,  as  we  haTC  said 
already,  fundamental  principles,  and  a  constat  recurrence 
to  them,  are  far  more  important,  on  accounl  of  the  greater 
importance  of  these  principles  as  being  themselves  the 
origin  and  object  of  the  law. 

Whenever  we  are  doubtful,  and  there  are  many  such 
cases  in  law,  we  should  adhere  to  precedents,  because  they 
carry  along  with  them  the  additional  reason  of  certainty. 
The  statesman ,  however,  must  take  into  consideration  the 
effects  which  his  measures  will  have;  his  decisions  will  be 
generally  characterized  by  their  effects;  and  the  greater 
part  of  the  decisions,  at  which  he  will  arrive,  are  new  rules 
themselves,  and  not  decisions  according  to  given  rules* 

IX.  Executive  acts  ought  never  to  be  considered  as 
precedents  by  any  one  but  the  inferior  executive  officer, 
and  he,  too,  must  be  conscientiously  convinced,  that  the 
first  act  was  not  against  the  law.  If  we  were  to  take 
every  executive  act  as  a  precedent  and  a  justification  of 
similar  subsequent  ones,  it  would  be  monstrous  and 
subversive  of  the  very  principles  of  a  free  government. 
The  legal  precedent  is  a  decision  between  parties,  but,  in 
this  case,  the  executive  itself  forms  a  party.  The  only 
plea  which  might  be  insisted  upon  with  an  appearance  of 
plausibility,  would  be,  that  a  general  acquiescence  in  a 
measure,  changes  it  into  a  precedent.  But  this  is  the 
more  dangerous  and  fallacious,  as  the  act  in  question  is 
frequently  of  a  kind,  that  either  it  cannot  be  well  ascer- 
tained, whether  general  acquiescence  has  taken  place,  or 
that  the  demonstration  of  the  contrary  is  impossible.  A 
theory  of  this  dangerous  sort  would  be  founded,  moreover, 


200  HERMENEUTICS. 

upon  a  principle  contrary  to  free  government  on  another 
ground.  It  is  one  of  the  fundamental  principles  of  a  free 
government,  that  a  citizen  has  not  only  the  right  of  dis- 
senting from  those  in  power,  but  also  publicly  to  pronounce 
that  dissent,  and  to  unite  with  others,  in  order  to  dislodge 
by  combined  strength,  using  fair  and  honest  means,  those 
who,  for  the  time,  are  invested  with  the  insignia  of  author- 
ity. What  sense  would  the  words  minority  and  majority 
have  otherwise?  It  is  a  most  sacred  right  of  every  freeman 
who  belongs  to  the  minority  to  convince  his  fellow  citizens, 
if  he  can,  of  the  justice  of  his  cause,  and  gradually  to  make 
the  minority,  to  which  he  belongs,  the  majority.  What, 
moreover,  can  the  majority  do,  but  to  follow  the  footsteps 
of  the  preceding  one,  if  political  precedents  shall  have  the 
authority  of  legal  ones,  or  binding  power  in  any  wise 
approaching  to  them?  The  judge  ought  not  to  decide 
upon  his  own  principles,  nor  upon  any  principles  other 
than  those  of  the  established  law ;  the  politician  stands 
upon  an  entirely  different  ground.  It  is,  actually,  upon  a 
difference  of  principles,  that  a  different  .administration 
comes  into  power. 

If  the  legal  rules  of  precedent  were  to  be  applied  to  the 
acts  of  the  executive,  or  of  any  authority  which  exercises 
power  (for  this  seems  to  be  the  criterion),  then  any 
successful  transgression  of  power  would  at  once  establish 
the  right  of  transgressing  it  for  ever.  Is  there  a  free 
country  on  earth  whose  history  does  not  mention  repeated 
instances,  when  those  invested  with  power  or  prerogatives 
have  disregarded  some  of  the  rights  and  franchises  of  the 
people,  considered  by  them  as  vitally  important  to  their 
liberty  and  well-being?     There  is  hardly  a  tyrant  never  so 


IIERMENEUTICS.  201 

vile,  who  will  not,  nor,  indeed,  who  cannot,  cite  precedents 
for  his  most  atrocious  offences. 

Home  Tooke  said  in  his  "Petition  of  an  Englishman:* 
"You  have  a  precedent  in  Cade.  And  for  the  justification 
of  any  infamous  and  dirty  business,  it  is  at  present  sumcienl 
that  there  is  a  precedent;"  and  Dr.  Thomas  Arnold  t  has 
these  words,  too  unlimited,  it  is  admitted,  when  thus  sepa- 
rately given:  "Nothing  has  ever  been  more  pernicious  1<> 
the  growth  of  human  virtue  and  happiness  than  the  habit 
of  looking  backwards  rather  than  forwards  for  our  mode] 
of  excellence."  J 


*  Printed  in  17G5  (25pp.4to).  I  quote  from  Memoirs  of  John  Home 
Tooke,  London,  1813,  vol.  I.,  page  ill. 

t  Page  7  of  his  Miscell.  Works,  London,  1S45. 

J  Has  the  Jacobinical  tendency  of  throwing  history  overboard  produced 
no  evils,  at  least  as  pernicious?  I  have  touched  upon  these  two  extremes 
in  my  Introductory  Discourse  on  the  State  (New  York,  18G0),  which  can  be 
in  the  hands  of  but  few  of  my  readers,  in  the  following  words :  — 

"The  faithful  teacher  of  politics  ought  to  be  a  manly  and  profound 
observer  and  construer.  His  business  does  not  lie  with  fantastic  theories 
or  empty  vellcitics,  except  to  note  them  historically,  and  thus  to  make 
them  instructive.  Aristotle  says,  and  Bacon  quotes  his  saying  approv- 
ingly, that  the  nature  of  a  thing  is  best  known  by  the  study  of  its  details, 
and  Campanella,  whom  I  quote  only  to  remind  you  how  early  the  truth 
was  acknowledged,  observes  that  a  thing  consists  in  its  history  (its 
development),  not  in  its  momentary  appearance,  its  phenomenon.  Lei 
us  keep  these  two  dicta  before  our  eyes  during  our  inquiries  into  the 
state,  with  this  addition,  that  the  knowledge  of  details  yields  fruitful 
acquisition  only  if  it  be  gathered  up  in  an  ultimate  knowledge  of  the 
pervading  organism ;  and  that,  however  true  the  position  of  Campanella, 
we  must  remember  that  politics  is  a  moral  science,  and  history,  the 
record  of  political  society,  has  not  necessarily  a  prescribing  character. 
Where  this  is  forgotten,  men  fall  into  the  error  of  Symmachus  pleading 
for  Victoria,  because  the  goddess  of  the  forefather-;,  against  the  God  of 
the  Christians,  because  a  new  God;  but  where  men  forget  the  importance 


202  HERMENEUTICS. 

X.  As  precedents  n  law  are  formed  out  of  that  same 
law,  or  are  so  professedly,  we  have  a  standard,  indicated  by 
themselves,  according  to  which  we  may  judge  whether  they 
have  indeed  that  authority  which  only  legal  precedent  can 
have  ;  but  in  politics,  to  take  precedents  from  the  history 
of  other  nations,  becomes  delusive  and  dangerous  in  the 
same  degree  as  that  history  is  less  known  to  us,  in  all  the 
many  details  which  may  have  had  a  bearing  upon  the 
precedent.  A  rule,  that  never  ought  to  be  departed  from, 
is,  that  wherever  power  is  suspected  to  have  been  unduly 
exercised,  let  the  case  be  decided  on  its  own  merits ; 
because,  as  we  have  seen  in  a  previous  chapter,  it  is  the 
natural,  inherent  and  necessary  attribute  of  all  power, 
physical  or  moral,  that  it  tends  to  increase.  Moral  power 
is  not  necessarily  evil  disposed  on  this  account,  but  without 
this  tendency  it  cannot  be  power.  If,  then,  political  prece- 
dents should  always  be  entitled  to  respect,  they  would  only 
increase  and  propel,  and,  therefore,  extend,  instead  of 
regulating,  the  motion  and  effect  of  power. 


of  history,  development  becomes  impossible,  and  dwarfish  schemes  will 
set  men  in  restless  motion,  like  the  insects  of  corruption  busy  in  disin- 
tegrating mischief."  8 

8  But  when  Dr.  Arnold  used  the  language  quoted  above,  it  is  not  probable  that  he 
meant  in  any  way  to  disparage  the  study  of  history.  He  was  himself  too  devoted  a 
student  of  that  science,  too  much  impressed  with  the  value  of  historical  precedents 
and  lessons,  as  all  his  life  and  writings  prove,  to  underrate  them  even  in  a  passing 
remark.  What  he  undoubtedly  had  in  mind  when  he  spoke  of  ''the  habit  of  look- 
ing backwards  rather  than  forwards  for  our  model  of  excellence,"  was  t lie  theory, 
so  prevalent  in  the  last  century,  as  well  as  in  earlier  ones,  of  a  state  of  nature  in 
■which  the  ideal  perfection  of  law,  morals,  —  in  short,  of  human  nature,  —  had  actually 
existed,  before  crimes,  injuries,  and  other  marks  of  human  imperfection  had  ap- 
peared to  pervert  it.  We  sometimes  hear,  even  yet,  the  natural  or  perfect  condition 
of  society  —  or  oftener,  of  some  particular  institution  or  relation  —  so  referred  to 
an  indefinite  time  in  the  past.  Dr.  Arnold  had  studied  history  too  well  and  thor- 
oughly to  take  this  view  He  knew  that  we  must  look  forwards  rather  than  back- 
wards to  find  all  human  institutions  in  their  natural  condition,  if  by  natural  we 
mean  that  in  which  every  part  of  their  nature  is  most  fully  and  harmoniously  devel- 
oped, so  as  to  serve  for  a  model  of  excellence.  —  Ed. 


HEUMENfil  TICS.  203 

"And  thai  your  Majestie  would  also  vouchsafe  to  declare, 
that  the  awardes,  doeings,  and  proceedings,  to  the  preju- 
dice of  your  People,  in  any  of  the  premisses,  shall  nol  be 
drawn  hereafter  into  consequence  or  example. *'  Petition 
of  rights  (drawn  up  by  Lord  Coke,  then  Sir  Edward9) 
presented  to  Charles  I.  June  2,  L628. 

XI.  For  the  same  reason,  precedents,  in  regard  to 
questions  of  doubted  jurisdiction,  assumed  and  decided 
upon  by  the  sam*3  court,  whose  power  is  doubted,  are  of 
less  value  than  those  which  oeeur  in  the  decision  of  ordinary 
law  cases.  The  court  here  forms  a  party,  and  the  stare 
decisis  does  not  apply  with  equal  force,  as  in  a  proper  law 
decision  on  a  question  of  meum  and  tuum. 

'I'he  force  of  precedents,  in  law,  rests  partly  on  this,  that 
similar  cases  have  been  decided  in  some  one  way  or  the 
other,  by  men  living  at  a  different  time  or  at  different 
places,  and  when  the  points  in  question  were  argued  by 
different  counsel.  In  this,  too,  legal  precedents  differ 
materially  from  mandates  of  the  executive  construed  into 
precedents. 

It  maybe  adopted  as  a  sound  maxim,  I  believe,  that  the 
more  the  advocates  of  a  political  measure  feel  themselves 
obliged  to  rely  on  precedents,  the  less  they  ought  to  be 
trusted,  and  on  no  account  oughl  precedent- alone  to  decide 
any  thing  in  politics,  if  doubts  exist  at  all. 

XII.  Perhaps  no  case  shows  more  clearly,  the  danger 
of  taking  executive  measure-  fir  precedent,  than  the  history 
of  the  Star-Chamber.     1  copy  the  following  from  Brodie:  — 


9  Coke  was  "Sir  Edward"  till  his  death.  Ho  was  a  member  of  the  last  house  "f 
commons  thai  sal  in  hi-  lifetime,  though  not  present  at  the  last  session  in  IC2  I.  Ilia 
title  of  "  Lord  "  Coke  was  bj  courtesy  only,  as  chief  justice.  The  first  common  law- 
judge  made  a  peer  was  sir  Edward  Jeffreys,  in  1685.  —Ed. 


20±  HERMENEUTICS. 

"When  this   pernicious    court  was    first  established  by 
Wolsey,  it  proceeded  with  great  caution.      The  president  of 
the  king's  council  was  added  by  stat.  21  Henry  VIII.  c.  20, 
to  the  number  of  judges  —  a  clear  proof  that,  even  at  this 
late  period,  it  was   conceived  to  be  quite  distinct  from  the 
council  —  and   by  certain  acts  of  parliament,  both  in  that 
reign,   and   even  in  Elizabeth's,  some  particular  kinds   of 
cases  were  committed  to  its  jurisdiction.     But  it,  in  no  long 
time,  assumed  a  bolder  tone,  till  it  even  disowned  its  origin. 
The  whole  privy  council  arrogated  the  right  of  sitting  there 
in  judgment,   and    the   question  was   no    longer  what   the 
statutes  allowed,  but  what  the  council  in  former  times  had 
done.     Having  once  adopted  the  principle  of  precedent,  it 
no  longer  submitted   to   any  check  upon  its  proceedings. 
Every  act  of  the  council  in  the  worst  times,  was  raked  up, 
though   so   many  statutes  were   devised  against  such  pro- 
ceedings ;    cases    were    grossly    misrepresented ;     strained 
analogies  were    resorted   to  ;    and  where    no    shadow  of  a 
precedent  could  be  discovered,  ingenuity  could  invent  —  a 
proceeding  the  more  simple,  as  no  regular  record  was  kept ; 
while  every  abominable  recent  case  was  held  to  be  conclu- 
sive   in   all  future   ones.     Where    no    precedent  could  be 
discovered  or  invented,  then  the  paramount,  uncontrollable 
power  of  a  court,  in  which  the  monarch  might  preside  in 
person  as  sole  judge  (for  having  held  it  to  be  the  same  as 
the  council,  they  next  assumed  that  principle),  was  entitled 
to  provide  a  remedy  for  any  alleged  disorder.     The  judges 
of   this  court,  too,  neglected   no  means   for  advancing  so 
abitrary  an  institution.     Under  the  pretext  of  desiring  to 
be    directed  by  the  best  legal  advice,   they  usurped    the 
power  of  nominating  the  counsel  who  should  plead  before 
them  ;  a  practice  that  operated  to  the  exclusion  of  every 


HERMEXEUTICS.  205 

man  who  had  honesty  and  independence  enough  to  assert 
the  rights  of  his  elient.  The  great  Plowden  It'll  under 
their  severe  animadversion,  for  reminding  them  of  stat.  3 
Henry  VIII.,  and  Sergeant  Richardson,  about  thirty  years 
afterwards,  incurred  a  censure  for  a  demurrer  to  the  same 
effect.  The  consequences  may,  therefore,  be  easily  figured  : 
every  precedent  begat  a  worse;  and,  towards  the  close  of 
Elizabeth's  reign,  though  the  Star-Chamber  still  retained 
some  decency,  it  had  reached  a  monstrous  height ;  but 
under  the  Stuarts,  it  threatened  a  general  overthrow  of 
popular  rights,  and  the  engrossment  of  all  ordinary  juris- 
diction."    Brodie,  vol.  I.  p.  188.*  10 


*  On  the  other  hand  it  is  perhaps  fair  to  quote  from  Macaulay's  History: 
"No  other  society  (than  the  English)  has  yet  succeeded  in  uniting  revo- 
lution with  prescription,  progress  with  stability*,  the  energy  of  youth  witli 
the  majesty  of  immemorial  antiquity." 

10  The  king's  council  early  exercised  criminal  jurisdiction.  As  the  legal  polity  of 
the  stall'  became  settled,  and  clearer  ideas  of  justice  prevailed,  the  power  of  the 
council  in  criminal,  as  well  as  in  other  matters,  was  restricted  by  statute.  From  the 
time  of  Edward  III.  to  Henry  VIII.,  the  jealousy  of  parliament  was  manifested  by  a 
sturdy  policy  of  repression,  until,  in  the  time  of  the  latter  prince,  the  prerogative- 
judicature  "f  the  king  in  council,  as  compared  with  its  original  power,  was  very 
small,  and  seldom  exercised. 

The  statute  :;  lien.  VII.,  c.  1,  revised  and  remodelled  the  tribunal,  and  gave  it  I'.ew 
vigor  and  impulse.  Lord  Bacon  elaborately  defends  it,  and  says  it-  action  was 
directed  principally  against  "force."  Probably  it  had  its  origin  in  the  desire  to 
speedily  and  finally  extirpate  the  spirit  of  disorder  which  the  civil  wars  had  ren- 
dered so  rife.  The  preamble  states  that  "  the  king,  remembering  how,  by  unlawful 
maintenance,  giving  of  liveries,  signs,  and  tokens,  *  *  *  by  taking  of  money  in- 
juries, by  great  riots,  and  unlawful  assemblies,  ihe  policy  and  good  rule  of  this  realm 
is  almost  subdued,  and  for  the  punishing  of  inconveniences  *  *  *  little  or  nothing 
may  be  found  by  inquiry  (i.e.,  by  inquest  by  juries),  whereby  the  laws  of  the  laud  may 
take  little  effect,  to  the  increase  of  murders,  robberies,  perjuries,  and  uncertainties 
of  all  men  living,  for  the  reformation  of  which  "  it  was  ordained  that  all  offenders 
should  be  summoned  before  the  chancellor,  treasurer,  privy  seal,  a  bishop,  a  lord 
temporal  of  the  council,  and  the  two  chief  justices,  as  judges,  who  should  examine 
and  punish,  "  after  the  form  ami  effect  of  the  statutes,  in  like  manner  as  they  should 
and  ought  to  be  punished  if  they  were  thereof  convicf  after  the  due  order  of  law." 

The  effect  of  this  statute,  as  avowed  and  explained  by  Lord  Coke  (Inst.  IV.,  c.  5), 
was  to  enlarge  the  judicial  authority  of  the  council.  It  was  expressed  in  the  affirm- 
ative, and  hence  not  prohibitory  of  the  former  jurisdiction  and  process.  The  body 
existed,  then,  in  both  capacities, —  as  the  old  council  and  a  new  court;  the  process, 


20G  HERMENEUTICS. 

"  No  man  shall  take  advantage  of  his  own  wronsr,"  is  a 
principle  nowhere  of  greater  importance,  than  in  govern- 
ment precedents. 

XIII.  Whether  we  attribute  authority  to  precedents  or 
not,  we  ought  always  to  pay  proper  attention  to  them  ;  for 
whatever  subject  may  occupy  our  reflection,  it  will  always 
be  found  of  great  assistance,  to  inquire  how  others,  in 
different  situations,  have  viewed  and  acted  upon  the  matter. 
New  ideas  will  be  suggested,  and  the  subject  will  appear  in 
different  connexions.  Mr.  Gerard  Hamilton  (Single  Speech 
Hamilton)  gives  it  as  an  important  rule,  in  his  Parlia- 
mentary Tactics,  which  will  be  allowed  on  all  hands  to  be 
a  work  of  exceeding  shrewdness,  whatever  we  may  think  of 
its  principles,  that  whenever  a  subject  previously  acted 
upon  is  before  the  house,  we  ought  to  read  some  works  or 
pamphlets,  written  at  the  time  when  it  previously  occupied 


mode  of  trial,  and  judges  were  changed,  but  the  crime  and  punishment  remained. 
In  fact,  during  the  reigns  of  Henrys  VII.  and  VIII.  it  appropriated  to  itself  all  the 
judicial  authority  of  the  ancient  tribunal.  During  the  reign  of  Elizabeth  it  extended 
its  control  to  libel,  sedition,  and  all  offences  of  apolitical  character;  from  time  to 
time,  as  its  needs  of  jurisdiction  were  included  in  statutes,  it  stretched  far  beyond 
the  words  of  the  original  statute,  until  it  grasped  all  cases  which  the  tribunal  itself 
imagined  to  concern  the  state.  The  proceeding  was  by  interrogatory,  —  a  method 
unknown  to  the  common  law,  —  and  the  discretionai-y  power  of  punishment  was  prac- 
tically unlimited,  though  it  did  not,  in  words,  extend  to  any  offence  that  "  concerns 
the  life  of  man."  In  fine,  by  the  operation  of  this  statute,  and  one  slightly  amend- 
atory, 21  Hen.  VIII.,  c.  20,  the  offences  named,  and  subsequently  many  others  which 
had  been  cognizable  by  indictment  and  action,  might  be  arraigned  and  tried  without 
an  inquest,  without  a  jury,  upon  a  simple  examination  of  the  parties  and  the 
witnesses. 

The  prompt  and  efficient  action  of  such  a  court  was  doubtless  adapted  to  times  of 
trouble  and  disorder.  But,  in  a  more  peaceful  state  of  society,  its  practically  unlim- 
ited power  became  quite  as  efficient  a  means  of  oppression.  Dependent  upon  the 
sovereign,  it  was  active  and  vigilant  in  his  behalf.  By  intimidation  of  juries,  under 
the  charge  of  perjury,  it  brought  the  criminal  law  to  its  feet;  for,  when  it  took  into 
consideration  the  verdict  of  the  juror,  it  really  reopened  and  retried  the  cause,  —it 
exercised  an  unlimited  criminal  jurisdiction,  without  chance  of  appeal. 

Such  a  tribunal  could  not  exist  among  a  free  people.  "  If  the  Constitution  had 
notoverthrownit.it  must  have  worked  the  downfall  of  the  Constitution."  In  the 
reign  of  Charles  I.,  when  political  liberty  was  boldly  struggling  to  vindicate  its  just 
claims,  the  Star-Chamber  was  finally  abolished. — Ed. 


HERMENEUTICS.  207 

the  attention  of  politicians.  Whether  Ave  ought  first  to 
reflect  minutely  upon  the  subject,  and  then  consider  prece- 
dents, or  vice  versaf  must  depend  upon  the  convict  ion  we 
have  of  our  own  independence  of  thought  upon  the  Bubject. 
If  we  know  that  we  are  master  of  the  subject,  and  thai  our 
views,  upon  those  principles  which  we  acknowledge  as  the 
fundamental  ones  of  our  whole  political  course,  are  clear. 
then  we  ought  first  to  view  the  matter  in  the  light  of  our 
own  resources  alone. 

The  interests  of  the  moment,  the  magnitude,  with  which 
subjects,  in  the  very  midst  of  which  we  live,  appear,  are 
apt  to  represent  them  in  too  glaring  a  light,  to  the  injury 
of  other  more  distant  interests.  Montesquieu  probably 
meant  this,  when  he  said:  "It  is  with  a  trembling  hand 
that  we  ought  to  change  laws."  This  is  another  reason 
for  attention  to  precedent. 

XIV.  A  precedent  ought  to  be  sound,  that  is,  it  ought 
to  come  from  good  authority,  or  a  period  which  we  consider 
favorable  to  a  thorough  and  sound  view  of  the  subject  in 
question.  Even  James  I.  said,  "precedents  in  times  of 
minors,  of  tyrants,  of  women  (which  was  a  very  unfor- 
tunate slip  for  a  James,  who  followed  an  Elizabeth),  simple 
kings,  are  not  to  be  credited,  because  for  private  ends."* 

Precedents  must  be  taken  witli  all  their  adjuncts,  or 
they  will  be  totally  misunderstood ;  and  not  only  with 
their  adjuncts  at  the  time,  but  likewise  with  their  conse- 
quences and  effects. 

No  precedent  of  whatever  sort,  can  weigh  against   right 

*  Brodie,  I.  34(i. 


208  HERMENEUTICS 

and  distinct  law,  for  the  latter  are  certainty,  and  prece- 
dents are  used  to  obtain  approximate  certainty  in  cases 
of  doubt. 

Precedents  must  not  Increase  power  against  those  who 
are  to  be  protected ;  for  the  latter,  frequently,  cannot 
oppose  the  first  step  of  arrogatiou. 

Precedents  against  law  or  the  law's  reason  must  be  set 
aside.  Lord  Coke  says  :  "  Qua?  contra  rationem  juris  intro- 
ducta  sunt,  non  debent  train  in  consequentiam."*  n 

If  the  subject  which  they  relate  to,  has  changed,  or  if 
we  are  convinced  after  patient  inquiry,  which  includes  a 
thorough  knowledge  of  the  subject-matter,  that  we  ought 
in  justice  to  deviate  from  former  decisions,  we  act  wrong 
in  perpetuating  that  which  is  unjust  or  injurious ;  for 
whatever  may  be  said,  reason  is  and  must  remain  above 
law  and  precedent.  A  frivolous  or  hasty  application  of 
this  principle  is  highly  dangerous  ;  yet  it  does  not  become 
on  this  account,  the  less  true.  If  Ave  should  consider  all 
future  cases  of  a  similar  nature,  as  prejudged  by  our 
decision,  stagnation  would  be  the  consequence,  instead  of 
an  expansion  and  development  of  the  law.  There  is  such 
a  thing  as  idolatry  of  precedents,  and  an  idolatry  it  is, 


*  The  case  of  Proclamations,  Mich.  8  James  I.,  A.  D.  1610.  12  Coke's 
Reports,  74. 

11  Coke  was  indebted  for  this,  as  for  so  many  other  of  his  maxims,  to  the  civil  law. 
Whether  he  drew  from  the  classic  sources  of  that  law  directly,  may  be  doubted.  He 
could  find  many  of  them  in  Bracton,  and  the  early  other  writers  upon  English  law. 
But  there  are  passages  in  his  works  that  show  he  was  not  so  entirely  unacquainted, 
as  it  has  of  late  been  common  to  suppose,  with  the  system  of  law  which  prevailed  in 
his  time  over  all  the  states  with  which  England  was  in  the  fullest  communication. 
The  changes  of  phraseology  with  which  the  Roman  maxims  appear  in  his  writings 
are  good  grounds  for  supposing  that  he  got  them  at  second-hand.  Thus,  the  maxim 
quoted  in  the  text  reads  in  the  original  of  Paulus:  "Quod  contra  rationem  juris 
receptum  est,  non  est  producendum  adconsequentias."  Lib.  141,  pr.  D.  deR.  J., 50, 17. 
Upon  the  meaning  of  the  maxim,  see  Supplementary  Note  G,  on  Katio  Juris.  — ED. 


HEBMHNEUTICS.  209 

which,  at  times,  has  slaughtered  Justice  at  her  own 
altars. 

One  of  the  reasons  why  due  weight  should  be  given  to 
precedents,  is,  as  we  have  seen,  the  safety  and  security  of 
the  citizens,  the  steadiness  of  the  knowledge  of  the  law. 
Adherence  to  precedents,  however,  may  be  carried  to  sueh 
.an  extent,  that  its  effect  is  to  the  contrary.  If  while  only 
known  and  acknowledged  precedents  are  followed,  that 
which,  according  to  common  sense  and  justice,  ought  to  be 
done,  is  also  omitted  for  fear  that  some  hidden  precedent 
to  the  contrary  might  exist,  then  precedents  unsettle  instead 
of  settling.  An  effect  not  unsimilar  takes  place  when  some- 
thing which  ought  to  be  done  is  omitted,  merely  because 
no  precedent  is  known.  Surely  the  first  act  can  have  no 
precedent ;  and  a  precedent  unknown  in  practice,  and 
merely  hunted  up  in  the  archives,  has  lost  the  very  char- 
acter  of  an  authoritative  precedent. 

If  the  London  Evening  Mail  of  April  18,  1834,  reports 
correctly,  Mr.  Justice  Taunton  said,  in  the  case  of  the 
king  on  the  prosecution  of  William  Seymour,  Esq.,  v. 
Holloway,  "  that,  however  hard  the  case  might  be 
(another  justice  had  already  declared  the  case  exceeding 
hard),  he  did  not  remember  any  precedent,  which  could 
authorize  the  interference  of  the  court.  The  clerk  of  the 
court,  however,  would  search  among  the  crown  records 
for  a  precedent,  if  such  existed,  and  would  inform  the 
learned  counsel  of  it;  if  there  was  such  a  precedent,  the 
learned  counsel  could  bring  the  matter  before  the  court." 

A  precedent  in  itself,  merely  as  a  thing  that  has 
happened,  or  been  done,  can  have  no  power  one  way  or 
the  other ;  and  the  rule,  that  that  which   is  wrong  in  the 


210  HERMENEUTICS. 

beginning  cannot  become  right  in  the  course  of  time,  is 
surely  too  deeply  engraven  in  every  man's  mind  to  be 
doubted.  Many  of  the  most  eminent  lawyers,  and  we 
would  say,  all  the  most  philosophical  among  them,  such 
as  Lord  Mansfield,  have  acted  upon  this  principle  and 
overruled  wrong  precedents,  though  with  great  caution.* 


*  See  the  sound  and  clear  exposition  of  the  delicate  subject  of  legal 
precedents  in  1  Kent's  Comment.  Lect.  XXI.  p.  479  and  seq. 

The  Roman  Law  acknowledges  the  authority  of  precedents  in  a  far  less 
degree  than  the  English;  in  fact,  if  we  take  the  word  "  precedent"  in  the 
English  sense,  the  former  does  not  acknowledge  precedents  at  all,  but 
makes  habitual  recourse  to  the  emperor,  in  his  legislative  capacity, 
necessary.  Those  nations,  which  have  adopted  the  civil  law  as  the  main 
foundation  of  their  own,  act  upon  similar  principles.  With  them,  the 
necessity  of  judiciary  independence  upon  the  executive,  is  not  so  clearly 
acknowledged,  as  with  the  Anglican  race.  It  has  been  shown  already 
that  this  independence  requires,  in  a  considerable  degree,  the  acknowl- 
edgment of  precedental  authority. 

The  Code,  Book  I.  Tit.  1G,  22,  declares :  "  Si  imperialis  majestas  causam 
cognitionaliter  examinaverit,  et  partibus  cominus  constitutis  sententiam 
dixerit:  omnes  omnino  judices  qui  sub  nostro  imperio  sunt,  sciant  hanc 
esse  legem,  non  solum  illi  causa?,  pro  qua  producta  est,  sed  et  omnibus 
similibus." 

I  am  not  acquainted  with  a  more  striking  illustration  of  the  weakness 
of  the  mere  precedent  as  such,  that  is,  founding  the  precedent  exclusively 
on  the  mere  fact  of  its  having  happened,  than  the  following  case,  which 
therefore  is  given  somewhat  at  length.  The  lord  chancellor  of  England, 
in  February,  1841,  gave  judgment  in  a  case  in  which  two  nephews  and  one 
of  the  nieces  of  Admiral  Pym  claimed  legacies  of  £5,000  and  of  £G,000, 
given  by  the  will,  in  addition  to  sums  of  £3,000  and  of  £4,000,  given 
them  on  their  marriage.  His  lordship  was  of  opinion  that  the  legacies 
were  redeemed  by  the  portions,  the  Admiral  having  placed  himself  in  loco 
parentis,  and  it  was  decreed  accordingly.  On  Saturday,  the  23d  ult.,  a 
question  was  raised  and  argued  as  to  the  extent  of  the  ademption,  Mr. 
Bethel  and  Mr.  Lowndes  contending,  on  the  part  of  the  nephews,  that  the 
legacy  was  only  satisfied  to  the  extent  of  the  £3,000  received,  and  that  the 


HERMENEUTICS.  211 

Thus,  the  monstrous  patent  granted  hy  Edward  IV.  to 
his  father-in-law,  Ear]  Rivers,  in  the  7th  of  his  reign,  giving 
the  vastest  powers  to  the  High  Constable  and  Marshal,  is 
explainable  only  on  the  ground  of  the  then  convulsed  state 
of  the  country,  and  its  being  necessarily  under  a  sort  of 
military  government.  Sir  Edward  Coke,  therefore,  pro- 
nounced it  "a  most  irregular  precedent,"  and  says  that 
"therefore  by  no  means  the  same,  or  the  like,  is  to  be 
drawn  into  example."     4  Inst.  p.  127.     And  Lord  Bacon, 


estate  of  Admiral  Pvvm  was  liable  for  the  other  £2,000.  They  admitted 
that  it  had  hitherto  been  supposed  to  be  the  rule  of  law,  that  an  ademption 
in  such  cases  satisfied  the  whole  of  the  legacy,  but  they  showed  from  the 
registrar's  books  that  the  two  cases  on  which  the  supposition  rested  were 
misreported,  and  that  they  relied  on  the  general  principles  of  equity  lor  a 
decision,  which  would  set  the  law  at  rest,  and  correct  a  gross  injustice. 
The  lord  chancellor  now  gave  judgment,  and  observed  that  he  was  ninth 
struck  with  the  consequences  of  his  decision  in  the  present  case,  as  will 
as  in  others,  as  by  that  decision,  according  to  the  supposed  rule  of  law,  a 
portion  given  by  a  person  placing  himself  in  loco  parentis,  satisfied  a 
legacy,  however  great  might  be  the  difference  between  the  sum  given  and 
the  sum  bequeathed.  His  lordship  had  since  heard  with  pleasure,  in  the 
course  of  the  argument  on  the  subject,  that  the  alleged  rule  of  law  was 
not  warranted  by  reason  or  authority.  The  two  cases  on  which  the  rule 
mainly  rested  had  been  found,  by  an  examination  of  the  registrar's  bonk, 
to  be  misreported,  and  as  what  Lord  Eldon  ruled  in  Ex  parte  Pye  seemed  to 
have  been  founded  on  them,  it  ceased  to  be  an  authority.  The  public  and 
the  profession  were  greatly  indebted  to  the  gentlemen  whose  industry  had 
brought  to  light  the  true  facts  connected  with  the  cases  on  which  the 
supposed  rule  of  law  was  founded.  Under  this  new  state  of  facts  his 
lordship  held  that,  not  only  on  the  reasonableness  of  the  thing,  but  on  the 
true  principle  of  equity,  and  the  authority  of  the  cases  said  to  uphold  a 
contrary  doctrine,  the  nephews  and  niece  of  Admiral  Pym  were  entitled  to 
the  difference  between  the  portion  and  the  amount  given  by  the  will,  and 
his  lordship  decreed  accordingly.  [Pym  v.  Loekyer,  .">  Mylne  &  Craig,  l".), 
by  Cottenham,  C.  —  Ed. 


212  HERMENEUTICS. 

no  friend  of  Coke's,  praises  Lord  Coke's  Reports  as  con- 
taining "  infinite  good  decisions  and  rulings  over  of  cases."  * 


*  When  Cardinal  Mazarin  was  outlawed  by  the  Parisian  parliament,  the 
records  were  searched  in  order  to  discover  what  price  ought  to  be  set  on 
the  head  of  an  enemy  to  the  kingdom.  It  was  found  that  in  the  reign  of 
Charles  IX.  the  sum  of  50,000  crowns  had  been  voted  by  the  parliament  to 
whomever  should  produce  Admiral  Coligni  alive  or  dead.  The  same  recom- 
pense was  now  proffered,  in  order  to  act  in  accordance  with  precedent. 


CHAPTER    Yin. 

Authorities  —  Akin  to  Precedents  —  Definition  —  Ou^ht  we  to  submit  to 
them?  —  Slavish  Submission  to  them  —  Arrant  Disregard  of  them  — 
We  must  always  adopt  Authorities  in  many  Branches  —  Main  Questions 
of  Historic  Criticism  —  Similar  ones  regarding  Authorities  —  Who  is 
he?  —  What  Opportunity  had  he  to  know  the  Subject  ?  —  What  Motive 
prompted  him?  —  What  internal  Evidence  is  there?  —  Various  Phases 
of  the  same  Authority  —  Classical  Periods  —  Of  what  Extent  is  the 
Authority? 

I.  The  last  subject,  connected  with  hermeneutics,  which 
we  shall  consider,  are  authorities.  Of  course,  we  have  not 
to  consider  here  those  authorities  which  by  law  we  are 
bound  to  follow,  but  only  those  which  we  feel  morally 
obliged  to  acknowledge  to  a  greater  or  less  degree.1  Many 
remarks  wrhich  were  made  in  regard  to  precedents  apply 
with  equal  force  to  authorities,  as  most  of  the  observations 
which  will  be  made  on  the  present  subject  hold  good  in 
regard  to  the  former,  as  is  necessary  from  their  nature. 

II.  By  authority  we  understand,  in  the  limited  sense  in 
which  it  is  taken  here,  an  individual  whose  opinion,  for 
some  good  reason,  is  of  great  weight,  which,  therefore,  we 
use  to  support  our  argument,  or  adopt,  in  doubtful  cases, 
as  a  rule  of  action,  or  we  follow  in  cases  in  which  we  have 
not  the  proper  means  to  inquire  into  the  whole  truth,  or 
arrive  at  a  satisfactory  decision  by  an  independent  act  of 
judgment. 


1  See  Note  1  to  previous  chapter. 

(213) 


214  HERMENEUTICS. 

III.     The  first  question  here,  which  we  must  address  to 
ourselves,  is:    ought  we  to   submit  to  authorities   at  all? 
Has   not  every  one  received    an    intellect,   with  reasoning 
powers  to  judge  for  himself?     Is  it  not  enslaving  the  mind 
to  submit  it  to  the  opinion  of  another?    These  are  questions 
which  I  do  not  invent,  while  writing  these  lines,  but  which 
have  been  started  from  time  to  time,  and  are  at  this  moment 
repeatedly  asked,  and  frequently  answered  in  a  very  unsat- 
isfactory manner,  as  I  conceive  it.    There  is  such  a  thing  as 
Chinese  submission  to  ancient  authority  without  criticism  and 
reason,  and  there  is  such  a  thing  as  arrant  sans-culottism, 
disregarding  all  authority  and  leading  to  licentiousness,  in 
morals    and   religion,   not   less    than   in    science,   law  and 
politics.     It  is  the  object  of  these  lines  to  aid,  if  possible, 
in    obtaining   a   clearer  view  of  this    subject;    one  which 
touches  the  dearest  interests  of  society  and  the  welfare  of 
the  individual,  and  in  establishing  some  rules  which  may 
guide  us. 

IV.  "  Implicit  faith  belongs  to  fools,"  is  the  title  of  the 
first  chapter,  section  three,  of  Algernon  Sidney's  Discourses 
concerning  Government,  and  it  might  be  added :  blind 
obedience  belongs  to  rogues  and  not  to  honest  men.  We 
must  have  reasons,  why  we  ought  to  believe  or  obey,  why 
we  ought  to  adopt  the  opinions  of  others,  why  we  ought  to 
yield  to  their  judgment. 

The  reason  why  we  sometimes  ought  to  yield  to  the  judg- 
ment of  others  is  simply  this,  that  each  individual  cannot 
be  experienced  and  thoroughly  versed  in  all  things,  nor  has 
each  one  possessed  the  same  opportunity  to  observe,  or 
received  the  same  faculties  and  endowments  for  observing 


HERMENE1    I  l<  S.  215 

all  things.  If  my  watch  is  out  of  order,  my  house  out  of 
repair,  my  bodjrout  of  health,  I  yield  to  the  opinion  of  that 
watchmaker,  carpenter  or  physician,  whom  for  some  good 

reason  I  consider  competent  to  decide  in  the  respective 
cases.  If  I  write  a  book  on  human  society,  and  am  desirous 
to  know  first  of  all  the  physical  difference  between  man  and 
other  animals,  or  ascertain  the  difference  between  ancient 
and  modern  finances,  I  inquire  what  naturalists  like  Cuvier 
have  said  on  the  former,  or  scholars  like  Boeckh  on  the 
economy  of  Athens.  If  I  desire  to  obtain  a  thorough  view 
of  oratory,  I  see  what  Cicero  has  said,  or  what  Demosthenes 
or  Fox,  Grattan  or  Pitt,  have  done  in  this  sphere  ;  the  first, 
because  I  know  that  he  had  a  good  opportunity  to  observe 
and  inquire,  the  latter,  because  I  know  they  have  effected 
much  by  their  speeches.  If  a  house  of  legislature  is  obliged 
to  determine  on  a  subject  on  which  no  member  has  a 
thorough  knowledge,  witnesses  are  examined  at  the  bar  or 
before  committees,  or  the  whole  subject  is  first  inquired 
into  by  a  committee,  to  the  report  of  which  the  legislature 
grants  that  degree  of  assent  which  the  peculiar  circum- 
stances of  the  whole  case  may  warrant.  A  Shakspeare  is 
good  authority  in  many  matters  of  poetry,  though  not  in 
all.  "We  see,  then,  clearly  two  things:  we  are  daily  and 
hourly  obliged  to  acknowledge  authorities,  but  we  must 
have  good  reasons  not  only  for  our  acknowledgment,  but 
also  for  the  degree  of  our  assent.  No  more  is  demanded, 
in  matters  of  law  and  politics,  than  what  every  one  in 
his  individual  life,  experiences  daily.  AVe  omit  a  most 
important  duty,  if  we  neglect  collecting  experience  in  our 
life,  by  impressing  the  result  of  important,  perhaps  dearly 
paid  for,  transactions  or  events  distinctly  upon  our  mind, 


216  HERMENEUTICS. 

so  that  we  regulate  our  actions  by  it,  even  at  periods,  when 
the  details  of  the  events  have  vanished  from  our  memory, 
and  we  only  remember  the  fact  that,  at  the  time,  we  made 
up  our  mind  after  ample  experience,  and  the  result  at 
which  we  arrived.  This  applies  to  cases  of  expediency,  as 
well  as  to  strictly  moral  cases.  \  Far  greater  is  the  duty  of 
societies  in  the  a  gore  gate,  of  communities  and  states  to 
store  up  experience,  for,  it  cannot  be  too  often  repeated, 
politics  are  not  matter  of  invention,  but  of  experience  ;  not 
an  abstract  science,  but  the  application  of  the  eternal  prin- 
ciples of  justice  and  truth  to  ever  varying  circumstances. 

V.  If  we  are  desirous  of  ascertaining  what  degree  of 
belief  we  ought  to  grant  to  a  historical  account,  we  ought 
to  ask  ourselves  before  all,  the  following  questions  respect- 
ing the  author  and  the  account  itself. 

Ww  is  he  ?  We  ought  to  know,  if  possible,  where  he 
lived,  how  he  lived,  what  his  connexions,  his  mental 
capacity,  his  morality,  his  temper,  whether  rash  or 
cautious,  or  over-cautious,  a  matter  of  fact  man,  or  of 
ardor  and  impulse,  whether  he  or  his  family  have  suffered, 
&c. 

What  opportunity  had  he  to  observe  ?  Did  he  see  things, 
or  receive  them  from  the  first  source,  or  at  second  hand,  or 
by  distant  hearsay?  Was  he  engaged  in  the  transactions 
which  he  relates  ;  did  he  take  pains  to  learn  the  truth? 

What  motive  had  he  to  give  this  account  ?  Does  he 
endeavor  to  defend  a  party,  a  certain  transaction  or 
individual  ?  Could  he  gain  by  it,  or  did  he  expose  himself 
by  giving  it?  Is  he  in  any  manner  interested  in  the 
matter?      Were    the   times    he  lived  in   so  agitated   by  a 


HERMEXEUTICS.  2  1  7 

certain  principle,  that  even  unconsciously  to  himself  this 
gave  a  strong  bias  to  his  mind,  one  way  or  the  other, 
even  in  viewing  events  long  passed   by? 

What  internal  evidence  of  truth  do  we  find  in  the  account, 
and  how  far  do  those  statements  which  we  have  it  in  our 
power  to  compare  with  authenticated  statements,  agree  ? 
We  possess,  not  unfrequently,  accounts  of  much  importance, 
the  author  of  which  is  even  unknown  to  us,  and  yet  they 
bear  such  evidence  of  truth  within  them,  that  we  cannot 
do  otherwise,  but  grant  a  high  degree  of  faith  to  them. 
Instances  are  found  in  Raumer's  late  work  containing  the 
correspondence  of  ambassadors  and  other  persons  in  high 
stations,  discovered  by  him  in  various  European  archives. 

VI.  Now,  these  rules  of  fair  criticism,  modified  accord- 
ing to  the  different  subjects,  arc  applicable,  likewise,  to 
authorities  in  politics  and  law.  If  an  authority  is  cited  to 
which  we  are  expected  to  grant  assent  or  respect,  we  ought 
to  ask  ourselves  first  of  all,  — 

Who  is  he? 

Wliat  opportunity  had  he  to  know  the  subject  ?  In  what 
time  did  he  live  9 

What  motive  prompted  him  f 

What  internal  evidence  has  the  authority  9  and 

Of  what  extent  is  the  authority  ? 

VII.  TJ7/0  is  he  ?  It  is  evident,  that  the  whole  character 
of  him  who  is  claimed  as  having  established  the  authority. 
is  of  the  greatest  importance  —  his  moral,  mental  and 
political  character.  That  which  is  applicable  to  individual-. 
is  no  less  so  as  to  whole  bodies  and  periods.  We  must  be 
sure  that  their  character  be  sound. 


218  HERMENEUTICS. 

Mr.  Greenleaf,  in  an  interesting  paper,*  says:  "Neither 
are  all  reporters  entitled  to  equal  consideration ;  but  in 
weighing  the  credit  which  they  deserve,  regard  must  be 
had  to  their  opportunities  for  observation  of  what  passed 
in  the  court,  their  ability  to  discern,  and  their  habitual 
care  and  exactness  in  relating.  We  may  listen,  with  almost 
implicit  deference,  to  Plowden,  and  Coke,  and  Foster; 
while  the  authority  of  some  others  is  entitled  to  little  more 
respect  than  was  shown  to  the  honest,  but  blundering 
Barnardiston,  whose  contemporaries,  'who  knew  the  sergeant 
and  his  manner  of  taking  notes,'  were  surprised  rather 
that  he  ever  stumbled  on  what  was  right,  than  that  he 
reported  so  many  cases  wrong.  The  manner  of  the  decision, 
too,  and  the  reasons  on  which  it  is  professedly  founded, 
and  even  the  decision  itself,  may  receive  some  coloring  and 
impress,  from  the  position  of  the  judges,  their  political 
principles,  their  habits  of  life,  their  physical  temperament, 
their  intellectual,  moral  and  religious  character.  Not  that 
the  decision  will  depend  on  these ;  but  only  that  they  are 
considerations  not  to  be  wholly  disregarded  in  perusing 
and  weighing  the  judgment  delivered.  Thus  we  should 
hardly  expect  to  find  any  gratuitous  presumption  in  favor 
of  innocence,  or  any  leanings  in  mitiori  censu,  in  the 
bloodthirsty  and  infamous  Jeffreys  ;  nor  could  we,  while 
reading  and  considering  their  legal  opinions,  forget  either 
the  low  breeding  and  meanness  of  Saunders,  the  ardent 
temperament  of  Buller,  the  dissolute  habits,  ferocity  and 
profaneness  of  Thurlow ;  or  the  intellectual  greatness  and 


*  Professor  of  Law  in  Cambridge  University,  Massachusetts,  Introduc- 
tory Lecture,  &c,  in  the  Law  Reporter,  Boston,  Mass.,  December,  1838. 


HEKMENEUTIC8.  219 

integrity  of  Hobart,  the  sublimated  piety  and  enlightened 
conscience  of  Hale,  the  originality  and  genius  of  Holt,  the 
elegant  manners  and  varied  learning  of  Mansfield,  or  the 
conservative  principles,  the  lofty  tone  of  morals,  and  vast 
comprehension  of  Marshall. 

"Neither  should  we  expect  a  decision  leaning  in  favor 
of  the  liberty  of  the  subject,  from  the  Star-Chamber ;  aor 
against  the  king's  prerogative,  among  the  judges  in  the 
reigns  of  the  Tudors,  or  of  James  the  First;  nor  should  we, 
on  this  side  of  the  water,  resort  to  the  decisions  in  AVest- 
minster  Hall,  to  learn  the  true  extent  of  the  admiralty 
jurisdiction,  which  the  English  common  law  courts  have 
been  always  disposed  to  curtail,  and  in  many  points  to 
deny;  while  it  is  so  clearly  expounded  in  the  masterly 
judgments  of  Lord  Stowell,  and  of  his  no  less  distinguished 
and  yet  living  American  contemporary." 

VIII.  What  opportunity  had  he  to  know  the  subject  f 
In  what  time  did  he  live  9  In  cases  of  law,  for  instance, 
it  is  of  great  importance  to  know  whether  the  case  was 
amply  and  thoroughly  argued,  and  whether  the  opinion, 
now  claimed  as  authority,  was  given  after  full  investigation, 
and  a  detailed  examination,  or,  perhaps,  incidentally. 

In  important  political  matters,  it  is  necessary  to  know 
whether  the  authority  belongs  to  what  we  will  call  a  clas- 
sical age,  by  which  I  mean,  that  period,  which  by  the  con- 
currence of  many  rare  and  favorable  circumstances,  rendered 
those  who  lived  in  it  peculiarly  fit  to  see  the  whole  bearing 
of  a  question,  and  which  in  its  result,  shows  that  these 
questions  were  thoroughly  understood,  perhaps  sealed  with 
the  sacrifice   of  the   dearest  interests,    even  life  —  periods 


220  HERMENEUTICS. 

which,  for  these  reasons,  carry  a  power  of  victory  within 
them  for  all  successive  ages. 

A  thousand  political  and  religious  circumstances,  condi- 
tions of  life  and  peculiarities  of  character,  cooperated  to 
develop  the  most  exquisite  taste  in  the  Grecian  tribes. 
Their  sculpture,  their  architecture,  has  remained  unrivalled, 
and  we  are  not  only  permitted,  but  bound  to  admit  them 
as  £ood  authorities  in  these  branches,  if  we  believe  at  all 
in  progressive  civilization,  and  that  history  assigns  the 
development  of  certain  problems  to  various  nations,  so 
that  their  activity  is  directed  to  that  point,  and  that  they 
produce  some  grand  effects  which  may  benefit  other  nations, 
without  their  being  obliged  to  go  through  the  same  trials, 
to  make  the  same  sacrifices. 

We  find  the  same  in  politics.  The  very  spirit  of  liberty 
demands,  in  all  common  cases,  compromise  :  a  law  shall  be 
so  poised  that  it  injures  the  least  and  benefits  the  most. 
The  claims  of  all  shall  be  proportionately  honored.  An 
absolute  government  need  not  weigh  matters  respecting 
existing  rights  with  the  same  nicety ;  it  disregards  them 
if  it  has  vast  plans  in  view,  which  ultimately  result,  or  are 
believed  to  do  so,  in  a  general  benefit.  If  this  circumstance 
is  seized  upon  by  enlightened  absolute  governments,  great 
plans  may  be  carried  with  comparative  ease.  Masses  may 
be  obliged  to  yield  and  work  toward  the  vast  object.  We 
have  an  instance  in  the  Prussian  general  school  system. 
This  being  the  case,  other  nations  would  neglect  their  duty 
not  to  adopt,  from  this  system,  those  beneficial  results 
which  are  applicable  to  their  peculiar  cases,  and  offered, 
without  the  necessity  of  adopting  the  same  original  means 
to  arrive   at  them.     Polytheism,  representing  the  gods  in 


HERMENEUTICS .  -  -  1 

human  shape,  which  thus  came  to  be  idealized,  greatly  aided 
in  raising  the  plastic  arts  in  Greece  to  that  eminent  pitch 
of  excellence  in  which  we  behold  [them]  when  walking 
through  the  Vatican.    Let  us,  at  present,   reap  the  fruits, 

without  passing  through  the  same  religious  mazes.  Abso- 
lutism aided  greatly  in  effecting  that  general  plan  of  edu- 
cation, which  we  behold  in  its  vast  results,  in  Prussia:  let 
us  take  its  best  fruits,  without  going  through  the  same 
political  process.     France  has  done  so. 

No  one  can  study  the  Constitution  of  the  United  States, 
without  perceiving  how  powerful  an  influence  the  principles 
of  the  Petition  of  Right  and  the  Bill  of  Rights — which, 
with  the  Magna  Charta,  form  the  bible  of  the  English 
Constitution,  as  Chatham  said  —  exercised,  in  producing 
that  memorable  instrument.  It  was  right  that  the  framers 
paid  this  regard  to  those  great  acts,  for  the  age  which 
produced  them  must  be  considered,  as  to  some  points  of 
constitutional  development,  classical. 

Hampden  brought  one  of  the  most  momentous  points  in 
all  constitutional  history  to  an  issue,  and  wagered  his 
property  and  his  all  for  thirty  shillings  six  pence,  and  his 
trial  for  the  ship-money  must  be  considered  as  a  more 
important  chapter  in  British  history,  than  those  made  by 
some  whole  reigns.  Let  us  take  him  as  good  authority, 
showing  how  important  in  the  higher  politics  the  principle 
is,  no  matter  how  insignificant  its  direct  operation  at  the 
moment  may  be.  Political,  like  moral  importance,  de- 
pends upon  the  principle,  not  the  value  at  issue.  Judas 
was  not  the  less  a  traitor  for  taking  but  thirty  pieces  of 
silver. 

The  debates  of  the  framers  of  the  Constitution  of  the 
United  States,  on  this  instrument,  are  valuable  authorities, 


222 


HERMENELTICS. 


for,  in  several  respects,  their  time  was   a   classical  age  in 
our  constitutional  history. 

A  period  may  be  classical  as  to   commercial  law,  while 
not  in  other  respects. 

Here  it  maybe  mentioned,  that  authorities  may  become 
very  strong  in  an  indirect  way,  namely,  if  we  find  that 
certain  principles  are  acknowledged,  even  though  the 
person,  country,  or  period  to  which  it  belongs,  are  hostile 
to  the  subject  in  general,  so  that  the  statement  of  these 
principles  is  to  be  considered  as  one  of  the  last  points  of 
truth,  which  even  they  could  not  deny.  If  we  find  a 
principle  of  British  liberty  acknowledged  even  by  a  Henry 
VIII.,  without  his  having  had.  a  momentary  and  direct 
advantage  in  view,  it  is  a  strong  authority  in  favor  of  it. 
If  we  find  that  even  in  China,  the  government  of  which  is 
perfect  absolutism,  theoretically  founded  upon  parental 
authority  and  filial  obligation,  and  democratic  equality 
among  all  below  the  emperor,  that  even  there  the  maxim 
is  acknowledged,  that  "it  is  equally  criminal  in  the  emperor 
and  the  subject  to  violate  the  laws,"  it  is  strong  authority 
in  showing  that  the  law  should  be  superior  to  every  indi- 
vidual will.  It  surely  was  good  authority  in  England, 
before  the  prisoner  was  allowed  counsel,  that  even  Lord 
Jeffreys  declared  it  a  "  cruel  anomaly  that  counsel  was 
permitted  in  a  case  of  a  few  shillings,  but  in  a  case  of 
life  and  death  not.'* 

IX.  What  motive  prompted  Mm  9  The  necessity  of 
carefully  attending  to  this  question,  has  been  shown,  in 
section  vii.  of  this  chapter,  but  it  is  important  to  add  a 
few  remarks. 

In  citing  authorities,  it  is  but  too  often   forgotten,  that 


HERMENEL'TLCS. 


223 


individuals,  as  well  as  periods,  however  distinguished  for 
certain  principles  or  courses  of  action,  have  their  phases, 
to  which  we  must  direct  discriminate  attention,  lest  we  be 
misled  in  a  very  disastrous  manner.  Lord  Coke  is  very 
staunch  authority  on  many  points,  but  not  when,  in  4  Insl . 
p.  65,  he  advocates  the  Star-Chamber  in  round  terms,  and 
calls  it  "the  most  honorable  court  in  the  Christian  world' 
the  parliament  excepted."  Coke,  when  he  drew  up  the 
Petition  of  Right,  was  in  a  very  different  phase  from  the 
one  he  appears  in  when  prosecuting  Essex  or  Raleigh,  or 
when  he  endeavored  to  reestablish  himself  in  court  favor 
by  marrying  his  daughter  to  a  brother  of  Buckingham. 
Lord  Bacon  is  a  very  excellent  authority  on  some  points, 
but  not  when  Milling  to  rack  Peacham,  which  he  knew  was 
against  law,  or  when  he  shamelessly  attacked  his  benefactor 
Essex,  or  when  he  makes  a  distinction  between  betraying 
justice  for  bribes,  and  merely  promoting  justice  for  bribes 
by  dispatching  cases.  Chief  Justice  Hale  is  a  very  excellent 
authority  on  some  points,  but  not  as  to  the  justice  and 
expediency  of  trying  and  punishing  witches. 

To  be  brief,  nothing  is  more  important  in  law,  politics, 
histon%  belle-lettres,  or  any  branch  whatever,  in  which  Ave 
acknowledge  authorities  —  and  more  or  less  we  must 
acknowledge  them  in  all  —  than  clearly  to  present  to  our 
minds  the  peculiar  provinces  in  which  we  admit  them,  and 
then  only  to  admit  them  if  no  particular  and  sufficient 
reason  obliges  us  to  exclude  them.  On  the  other  hand,  if 
we  are  fully  convinced  that  a  period,  or  individual,  is  clas- 
sical, in  the  forementioned  meaning  of  the  term,  on  some 
certain  points,  it  is  not  sufficient  to  disregard  them  merely 
because  we  cannot  at  once  see  their  reasons.     We   must 


224  HERMENEUTICS. 

have  specific  reasons  to  discard  them  ;  for  the   idea  that 
they  are  classical  is  that  then  there  existed  circumstances 
peculiarly  favorable  to  decide  the  point,  or  to   form  their 
judgment,  —  circumstances    which    we    cannot   at  will   re- 
produce.    And  iu  decisions  on  all  important  matters,  much 
depends    upon    a    certain    instinctive    feeling,   not    derived 
from  any  course  of  reasoning,  an  inclination  of  our  mind 
one  way  or  the  other,  in  nicely  balanced  cases,  not  from 
whim,  but    in    consequence    of   long   experience,    and    the 
effect  of  a  thousand   details   on   our  mind,  which   details, 
although  properly  affecting  a  sound  mind,  can  nevertheless 
not  be    strictly   summed    up.     That    expression,   "depend 
upon  it,  it  will  turn  out  so  or  so,"  is  very  frequently  used 
by  those  who  have  no  reason  in  their  vacant  minds  to  assign 
for  their   opinion,  yet   it    is    also    of  great   importance    if 
pronounced  by  men  who  do  have  much  experience  and  a 
sound  mind.     Almost  every  council  of  war  affords  instances 
of  this  kind.     The  great  general  very  often  knows  that  a 
manoeuvre  will  turn  out  so   or  so,  but,  in  many  cases,  he 
cannot  prove  it  mathematically.     A  man  like  Pitt  acquires 
a  tact  in  government  measures  ;    and  even  in  matters  of 
law  and  right,  which  are  very  nearly  balanced,  so  much  so, 
that  those  who  have  not  a  long  experience  in  these  matters, 
cannot  come  to  a  conclusion,  the  tact  of  a  Marshall,  an 
instinct,  if  the  word  be  preferred,  may  choose  the  right 
side.     I  repeat  it,  this  tact  or  instinct  is  not  depending 
upon  arbitrary  preference,  or  whimsical  choice, — if  so,  it 
is   totally  to   be    abhorred,  —  but   it  is  the  effect  of  long 
experience  in  many  detailed  cases,  of  practice,  upon  a  mind 
originally  of  peculiar  fitness  for  the  respective  branch  in 
which  the  important  case  arises. 


HERMENEl  TICS.  21.) 

If  we  find  that  Grecian  architects  always  ornament  their 
architrave  with  eighteen  drops,  we  may  depend  upon  it  that 
their  unequalled  sense  of  the  beautiful  induced  them  to 
adopt  this  number  ;m<l  its  distribution  in  three  rows,  as  the 
only  ones  which  harmonized  with  the  whole  character  of 
the  fabric,  and,  unless  we  discover  that  there  were  reasons 
for  adopting  this  number  which  do  no  longer  exist,  we 
should  act  presumptuously  in  deviating  from  it,  if  we  adopt 
otherwise  their  whole  style. 

Laws  arc,  in  a  certain  respect,  authorities.  They  have 
been  adopted  for  some  reason  or  other,  and  the  rule  just 
stated  applies  to  them.  It  is  not  sufficient  reason  to  abolish 
them  that  we  do  not  at  once  perceive  their  use  ;  we  must 
see  their  positive  defects  over-balancing  their  good,  or  that 
it  be  possible  to  obtain  the  same  good  by  other  means, 
without  incurring  the  same  disadvantages,  before  we  alter 
them.  Otherwise  each  individual  constitutes  himself  a 
judge  in  all  matters,  as  being  wise  and  expert  in  all 
branches,  which  is  impossible. 

X.  What  internal  evidence  has  the  authority  ?  That 
we  ought  not  to  disregard  this  point  any  more  in  the 
criticism  of  authorities  in  law  and  politics,  than  in  history 
or  any  branch  whatever,  is  sufficiently  clear.  If  an  opinion 
from  the  very  highest  and  most  respected  source  should 
bear  evidence,  in  itself,  that  it  was  given  upon  faulty  prin- 
ciples, we  are  bound,  of  course,  to  discard  it  at  once  ;  for 
instance,  Hale  on  witch  trials,  as  already  mentioned.  For 
this  reason,  among  so  many  others,  which  are  equally 
strong  when  applied  here,  as  in  the  case  of  precedents,  we 
should  bear  in  mind  that  it  is  necessary  that  we   should 


226  HERMENEUTICS. 

apply  to  authorities,  what  was  found  so  necessary  a 
principle  in  precedents,  that  each  case  must  necessarily  be 
taken  with  all  its  adjuncts.  It  is  necessary  to  know  the 
very  language  of  the  authority,  for  otherwise  we  cannot 
give  to  the  words  their  full  meaning,  and  for  this  reason, 
ao-ain,  authorities  must  be  taken  with  the  more  caution, 
the  more  remote  they  are  from  us,  unless  they  come  from 
a  classical  age,  and  we  do  not  live  in  one  directly  concerned 
with  the  point  at  issue.  "The  modern  reports,  and  the 
latest  of  the  modern,  are  the  most  useful,  because  they 
contain  the  last,  and  it  is  to  be  presumed,  the  most  correct 
exposition  of  the  law,"  says  Chancellor  Kent.  It  might 
be  added,  because  they  relate  to  cases  applying  to  the  same 
circumstances  and  conditions  with  our  own;  they  speak 
the  same  language  with  ourselves. 

XI.  Of  lohat  extent  is  the  authority  f  That  this  is  a 
question  of  the  highest  moment  in  politics  and  law,  appears 
at  once,  if  we  consider  that  both  are  matters  of  experience, 
not  indeed  of  expediency ,—  I  hope  I  shall  not  be  so  radically 
misunderstood  —  but  of  experience,  that  is,  they  consist  of 
sound  rules  derived,  by  reflecting  minds,  from  the  operation 
of  those  means  to  which  men  have  resorted  in  applying  the 
principles  of  right  and  justice  to  existing  cases,  or  those 
measures  which  have  most  promoted  their  development  or 
security.  If  we  see  that  the  plan  of  dividing  the  legislative 
department  into  two  branches,  or  chambers,  is  almost 
universally  adopted  by  the  constitutional  nations  of  our 
race,  and  that  the  more  constitutional  law  is  understood, 
the  more  the  plan  is  cherished,  it  affords  good  authority 
for  adopting  it,  even  if  the  people  have  not  yet  had  a  chance 


ELERMENEUTICS.  227 

to  try  it,  or  cannot  yet  precisely  Bee  the  admirable  opera- 
tion of  this  principle,  far  more  important  in  so  railed 
popular  governments  than  even  in  others.  The  Belgians 
acted  right  in  adopting  it,  whatever  even  a  Franklin  may 
have  said  to  the  contrary.  If  the  independence  of  the 
judiciary  is  daily  more  and  more  acknowledged  by  consti- 
tutional nations,  it  forms  good  authority  in  favor  of  it. 
Here,  as  in  all  cases,  we  must  be  convinced,  of  course,  that 
others  act  on  the  same  primary  principles  which  we  may 
have  acknowledged  as  essentially  important.  Otherwise 
our  rule  might  be  made  to  work  in  favor  of  persecuting 
heretics,  whipping  soldiers,  disallowing  counsel  to  crim- 
inally indicted  persons,  leaving  the  mass  of  the  people 
without  schools,  or  imprisoning  together,  pell-mell,  the 
accused  and  the  sentenced.  We  must  be  convinced  that 
those  who  have  adopted  the  measure  in  question  act  with 
us  on  the  same  principles,  or  on  principles  we  acknowledge 
as  good,  and  that  with  them  the  measure  is  neither  the 
consequence  of  chance  nor  the  effect  of  sinister  motives, 
but  carefully  adopted  or  developed  on  those  principles. 


SUPPLEMENTARY    NOTES, 

BY    THE    EDITOR. 


NOTE    A. 

BIBLIOGRAPHY   OF   INTERPRETATION. 

Writing  at  a  distance  from  large  libraries,  and  without  the  nse  of  any 
works  treating  professedly  upon  Bibliography,  I  cannot  hope  that  this 
list  of  books  and  treatises  on  the  subject  is  complete.  I  have  thought  it 
worth  while,  however,  to  enumerate  here  such  as  have  come  to  my  knowl- 
edge, for  the  sake  of  students  who  may  wish  to  pursue  the  subject  further. 
The  list  is  confined  to  legal  and  political  interpretation,  and  does  not  in- 
clude works  upon  Biblical  Interpretation,  etc. 

Early  works  of  the  civilians,  nowhere  accessible  in  this  country,  and 

hardly  to  be  found  in  Europe  except  in  a  few  great  libraries,  have  also 

been  omitted.    Lists  of  them  may  be  found  in  all  the  larger  bibliographical 

works,  and  also  in  the  following  books  of  easy  reference :  — 

Weiske.    Rechtslexikon.    Bd.  IV.,  pp.  701,  702. 

(xiuck.    Ausf.Erlauterung  dee  Pandekten.     Bd.  I.,  pp.  205, 261,  §§  29-36, 

notes. 
Eckhard.     Hermeneutica  juris.     (See  below.) 
And  less  fully  in  most  of  the  later  German  manuals  of  legal  study.    To 
copy  any  of  these  lists  would  be  an  easy  display  of  useless  erudition. 
With  the  exception  of  about  half  a  dozen  works  of  note,  the  following 
list  includes  only  such  references  as  the  editor  could  make  from  personal 
examination :  — 
Fr.  Hotomanni.    Jurcconsultus,  sive  liber  de  optimo  genere  juris  inter- 
pretandi.    Bas.  1559.    Also  in  collected  works,  Tom.  II.,  p.  10S7  seqq. 
Forster.    Interpres,  sive  de  interpretatione  juris  libri  duo.    Vitel.    1613. 

Also  in  Otto's  Thesaurus,  Tom.  II.,  p.  945  seqq. 
Flaccius.    De  jureconsulto  perfecto,  seu  interpretatione  legum.     Homb. 

1693. 

(229) 


230  APPENDIX. 

Wittich.    Principia  et  subsidia  hermeneuticae  juris.     Gotttingen.     1799. 
6.  Huf eland.     De  legum  in  Pandectis  interpretandarum  subsidio,  ex 

earum  nexu  et  consecutione  petendo.    Jena.     1795.    4to. 
A.Barbosce.    Tractatus  Varii.     Lugduni.     1651.    Polio. 

This  is  not  usually  enumerated  in  lists  of  works  on  Interpre- 
tation, but  deserves  more  attention  than  it  has  received.  It  is 
a  perfect  dictionary  of  the  early  interpreters'  results,  arranged 
alphabetically  under  the  five  heads  of  (1)  Axioms,  (2)  Appella- 
tives, (3)  Loci  communes,  (4)  Clauses  in  common  use,  (5) 
Phrases  in  common  use. 
F.Bapolla.    De  jureconsulto,  sive  de  ratione  discendae  interpretationis 

juris  civilis.    Naples.     1726.     8vo. 
C.H.Eckhard.     Hermeneutica  juris.    Jena.     1750. 

Edited  by  C.F.Walch.     Leipsic.     1779. 

Edited  by  C.W.Walch.     Leipsic.     1802. 

A.  F.  J.  Thibaut.  Theorie  der  logischen  Auslegung  des  romischen 
Rechts.     1799. 

Pandektenrecht.     §§  43-56,  1001.     (Translated,  with  notes,  by 

Lindley.     See  below.) 

J.  G.  Sammet.    Hermeneutik  des  Rechts.     Leipsic.     1801. 

Q.  8.  Teucher.    De  natura  et  formis  interpre  et  hermeneutices  civilis 

observ.    Lips.     1804. 
K.  S.  Zacharid.    Versuch  einer  allgemeinen  Hermeneutik  des  Rechts. 

Meissen.     1805. 

Vierzig  Bticher  von  dem  Staate.    Book  XX.,  chap.  5  (Vol.  IV., 

pp. 36-44). 

F.Maglianus.    De  juris  interpretandi  ratione.    Naples.     1808. 
M.  A.  Mailher  de  Chassat.    De  1' interpretation  des  loix.    Paris.     1822. 
W.L.  Clossius.    Hermeneutik  des  Rechts.     Leipsic.     1831. 
J.  H.  Bohmer.    De  interpretationis  grammatical  fatis  et  usu  vario  in 
jure  Romano. 

Preface  to  his  edition  of  Brissonius.     Also  in  his  Exerc.  ad 
Pandectas.     Tom.  I.,  pp.  22-93. 

De  verbis  directis  et  obliquis.     (Exerc.  ad  Pandectas.     I.,  94- 

142.) 

Wolfii,  Christ.  Jus  Naturae  methodo  scientifica  pertractatum,  etc. 
Francofurti  et  Lipsiae.  1740.  Tom.  VI.,  pp.  31S-413.  Pars  VI., 
cap.  3,  §§  459-560. 


APPENDIX.  231 

Grotius.    De  Jure  Belli  et  Pacis.     Lib.  II.,  c.  1G.     And  also  the  brief 

treatise,  De  Interpretatione,  usually  printed  at  the  cud  of  that  work. 
Voet,J.     Comin.  ad  Pandectas.     Tom.  I.,  tit.  3,  §§  18-24,  36,  44;   tit.  4, 

§§  16-19;  Torn.  V.,  lib.  34,  tit.  5,  §§  1-5. 
Lange.     Begrundungslehre  des  Rechts.     1821.    12mo.     §§  37-93,  pp. 

37-95. 
Miihlcnbruch.    Doc^rlna  Pandectarum.     1823.    Vol.  I.,  cap.  3,  §§  53-08, 

pp.  129-160. 
Vangerow.    Leitfaden.     Bd.  I.,  pp.  33-15. 
Savigny.     System  des  romischen  Rechts.     Bd.  I.,  cap.  IV.,  §§  32-50, 

Vol.  I.,  pp.  20(5-330. 
Trendelenburg.     Xaturrecht  auf  dem  Gruude  der  Ethik.     §§  71-S3,  pp. 

166-191. 
Windscheid.    Pandekten.    I.,  §§  20-6,  Vol.  I.,  pp.  49-03. 


ENGLISH   AND    AMERICAN  WORKS. 

I  have  included  i;n  ler  this  head  all  references  to  works  in  our  lan- 
guage, including  some   that  are  translations  or  of  foreign  authorship, 
having  in  view  rather  the  convenience  of  the  reader  than  a  strictly  accu- 
rate classification. 
Dwarris,  Sir  Fortunatus.    A  General  Treatise  on  Statutes,  their  Rules 
of  Construction,  and  the  proper  Boundaries  of  Legislation  and  of 
Judicial  Interpretation,  etc.,  etc.     Second  edition.    London.     1848. 
2  vols.  8vo. 

The  interpretation  and  construction  of  statutes  is  especially  the 
topic  of  Chap.  IX.,  pp.  550-712  of  Vol.  II. 

New  edition,  with  American  notes  and  additions,  etc.     By  Hon. 

Piatt  Potter.     Albany.     1871.     1  vol.  Svo. 

Omits  most  of  the  historical  part  of  Dwarris's  work,  and  other 
portions,  for  which  the  additions  hardly  form  a  satisfactory  sub- 
stitute. 
Sedgwick,  Theodore.    A  Treatise  on  the  Rules  which  govern  the  Inter- 
pretation and  Construction  of   Statutory  and  Constitutional  Law. 
Second  edition,  with  notes.     By  J.  N.  Pomcroy.    New  York.     1S74. 
8vo. 

Chapters  VI.-IX.  have  most  direct  reference  to  the  subject  of 
Interpretation. 


232  APPENDIX. 

Smith,  E.  F.  Commentaries  on  Statute  and  Constitutional  Law,  and 
Statutory  and  Constitutional  Construction.     1848.    8vo. 

Cooley,  Thomas  M.  A  Treatise  on  the  Law  of  Constitutional  Limitations 
upon  Legislative  Power  in  the  several  States  of  the  American  Union. 
Fourth  edition.    Boston.    1878.    See  especially  Chap.  IV.,  pp.  38-83. 

Lindley,  N.  An  Introduction  to  the  Study  of  Jurisprudence.  (Trans- 
lation of  the  General  Part  of  Thibaut's  Pandekten,  with  notes 
relating  to  English  Law.  See  especially  §§  43-56,  and  notes  in 
Appendix.)     American  edition.     Philadelphia.     1855. 

Abbott,  Benj.  V.  A  Dictionary  of  Terms  and  Phrases  in  American  or 
English  Jurisprudence.  2  vols.  Boston.  1879.  (This  useful  work 
appeared  after  the  matter  of  the  present  edition  was  entirely 
prepared,  and  most  of  it  printed.  Consequently  I  have  had  no 
opportunity  to  make  use  of  it,  or  even  to  omit  from  these  notes, 
as  I  should  otherwise  have  done,  any  thing  that  might  be  found 
treated  of  there.) 

Lieber,  Francis.    Civil  Liberty,    pp.  205-8. 

Wooddesson's  Lectures.    Vol.  I.,  pp.  31,  32. 

Sheppard's  Touchstone  of  Common  Assurance.     Chap.  V. 

Fonblanque  on  Equity.     Book  I.,  chap.  6. 

Evans's  Translation  of  Pothier  on  Obligations.  Vol.  I.,  pp.  91-102,  and 
App.  No.  V.  in  Vol.  II. 

VatteVs  Law  of  Nations.  Northampton.  1805.  1  vol.  8vo.  Of  the  In- 
terpretation of  Treaties.     Book  II.,  Chap.  XVII.,  §§  262-322.  . 

Butherforth' 's  Institutes  of  Natural  Law.  Vol.  II.,  Chap.  VII.  Of  Inter- 
pretation,    pp.  300-358.     Ed.  1799.     Whitehall.     2  vols.  8vo. 

Bouvier's  Institutes  of  American  Law.  Philadelphia.  1S76.  2  vols.  8vo. 
Vol.  I.,  §§  86-91,  661. 

Powell  on  Contracts.    New  York.     1825.    Vol.  I.,  pp.  221-247. 

The  best  discussion  of  the  interpretation  of  contracts  with 
which  I  am  familiar  in  English.  See  Note  on  that  subject, 
post. 

Maxwell,  Sir  Peter.  On  the  Interpretation  of  Statutes.  London.  1875. 
8vo. 

Hardcastle,  H.    A  Treatise  on  the  Rules  which  govern  the  Construction 

and  Effect  of  Statutory  Law.     Svo.    London.     1879. 
Gael.    A  Practical  Treatise  on  the  Analogy  between  Legal  and  General 
Composition.     London.     1840. 


APPENDIX.  233 

Austin,  John.    Lectures  on  Jurisprudence.    2  vols.  8vo.    London.    1863. 

1.  Statutes  passed  for  purposes  of  Interpretation  are  not  strictly 
laws.    p.  100,  I. 

2.  Spurious  kind  of  interpretation  called  extensive;  equity  of  a 
statute,     p.  40,  I.;  pp.  590,  051,  1029,  II. 

3.  Interpretation  of  statute  law.  p.  60,  I.;  644,  II.  Differs  from 
induction  of  judiciary  law.  p.  049,  II.  Reference  to  Sir  Samuel 
Romillyand  Paley.    p.  053,  II. 

4.  What  is  the  true  and  proper  object  of  interpretation?    p.  1023,  II. 

5.  How  the  intention  of  legislature  is  discovered;  from  literal 
meaning  of  words;  sometimes  from  other  indicia,     pp.  1023,  1024,  II. 

6.  Causes  which  have  led  to  extended  or  restricted  interpretation; 
this  is  really  judicial  legislation,  pp.  1025,  1020,  II. 

7.  In  what  sense  interpretation  proper  may  be  restrictive  or  exten- 
sive,    p.  1027,  II. 

8.  Grammatical  as  opposed  to  logical  interpretation,  pp.  1027-9, 
II. 


NOTE   B. 


OX    THE    DIVISIONS    OF    INTERPRETATION    BY    VARIOUS 
AUTHORS. 

Although  the  Roman  jurists  usod  the  term  interpretaUo  in  the  widest 
possible  sense  (as  will  be  seen  in  a  subsequent  note),  they  made  no  effort 
to  distinguish  its  various  kinds.  The  earliest  attempt  of  this  kind  which 
has  had  an  influence  on  our  modern  legal  phraseology  was  that  of  the 
Glossators  and  their  immediate  followers.  It  was  their  task,  not  merely 
to  draw  out  and  explain  to  their  contemporaries  the  vast  stores  of  legal 
principles  and  rules  contained  in  the  revived  Roman  law,  but  also  to 
make  them  applicable  to  the  institutions  and  relations  of  their  own  day. 
Hence  they  were  led  to  use  a  freedom  of  interpretation  little,  if  any. 
inferior  to  that  of  the  classic  jurists  who  wen'  the  original  authors  of  that 
law.  In  one  respect,  at  least,  they  went  beyond  them  :  the  notion  of  usual 
or  customary  interpretation  was  forced  upon  them  by  the  very  circum- 
stances of  their  task,  in  a  breadth  and  variety  of  application  unknown 


234  APPENDIX. 

before.  Consequently  we  find  the  distinction  of  authentic  and  usual  inter- 
pretation recognized  in  almost  every  page  of  their  writings,  though  not 
always  in  the  strict  sense  in  which  they  were  afterwards  defined.  The 
interpretation  of  ;,  li.v  by  the  prince  himself,  or  by  one  of  his  judges,  was 
binding,  and  a  part  of  the  written  law  itself.  Glo.  in  D.  de  legibus  (I.,  3) 
and  gl.  in  c.  2,  Cod.  de  legg.  (I.,  U).  That  made  by  custom  was  equally 
biudiug,  but  not  a  part  of  the  written  law.  Ibid.  That  of  a  doctor  of 
law,  or  of  a  majister  (as  the  teachers  in  the  law-schools  were  then  called), 
was  not  binding,  but  had  such  weight  as  its  reason  gav3  it.  Gl.  in  c.  2, 
Cod.  de  legg.  (I.,  14).  Whether  the  prince  could  delegate  his  authority  to 
particular  jurisconsults,  and  thus  make  their  opinion  biudiug,  and  a  part 
of  the  law  itself,  was  a  disputed  question,  in  the  discussion  of  which  we 
see  the  natural  reason  and  common  sense  of  the  mediaeval  lawyers, 
struggling  agaiust  the  letter  of  the  imperial  law  upon  the  well-known 
Kesponsa  Prudentum. 

Upon  the  effect  of  interpretation,  we  find  it  already  laid  down  in  clear 
terms  that  the  expression,  in  its  proper  sense,  denotes  the  plain  meaning 
of  a  word,  but  is  sometimes  taken  for  the  correction,  restriction,  or  exten- 
sion of  that  meaning. 

Interpretationis  verbum  in  sensu  proprio  clenotat  vocabuli  apertam  sig- 
nificationem,  quandoque  sumitur  pro  correctione,  arctatione  et  proroga- 
tione.     Gl.  in  L.  2,  Dig.  de  Origine  Juris  (I.,  2). 

But  the  tendency  to  overlook  the  plain  and  obvious  part  of  the  process, 
and  to  think  of  interpretation  as  necessarily  implying  some  active  influ- 
ence on  the  meaning  of  the  word,  different  from  the  plain  meaning, 
was  already  perceptible,  and  obscured  the  true  nature  of  the  process, 
as  it  has  continued  to  do  down  to  our  own  day.  The  view  against  which 
Dr.  Lieber  warns  us  at  the  end  of  Chapter  I.  could  hardly  be  more  suc- 
cinctly stated  than  in  this  passage :  — 

Interpretor  verbum  idem  est  quod  corrigo,  quandoque  idem  quod  aper- 
tius  exprimo,  item  idem  quod  prorogo.  Gl.  in  L.  1,  §  filio,  Dig.  ad  Tertyll 
(XXXVIII.,  17). 

We  read  frequently  of  benign,  favorable,  full,  odious  interpretations, 
but  none  of  these  terms  seem  as  yet  to  have  become  technical,  or  to  have 
been  reduced  to  a  system.  The  nearest  approach  to  one  that  I  have 
observed  in  the  Gloss  is  where  the  rule  is  given  of  "  full  interpretation  for 
contracts,  fuller  for  last  wills,  fullest  for  rescripts  and  benefices."  Gl.  in 
L.  21,  Dig.  de  V.  S.  (L.,  16),  and  elsewhere. 


APPENDIX.  235 

But  in  the  three  centuries  that  intervened  between  the  Glossators  and 
the  great  reform  of  jurisprudence  led  by  Alciatus  and  Cujae  and  their  con- 
temporaries, then-  grew  up  a  complete  art  of  interpretation,  the  technical 
terms  of  which  have  survived  to  our  own  day.  To  elaborate  the  rules  of 
such  an  art  was  in  full  accordance  with  the  taste  of  the  age,  and  the 
method  of  the  so-called  v  ?,  whose  name  fully  expresses  the  inter- 

minable labor  of  filling  huge  folios  with  all  that  could  possibly  he  written 
on  the  law,  to  which  tiny  devoted  their  lives. 

The  language  of  Azo  upon  this  subject  has  a  peculiar  interest  for 
English  and  American  lawyers,  even  where  it  has  not  been  directly  tran- 
scribed by  Bracton.  In  the  first  place,  it  gives  us,  in  a  clear  and  consecu- 
tive form,  the  best  results  of  the  legal  thinking  of  the  aire  by  which  the 
Roman  law  was  revived  and  first  applied  to  the  affairs  of  modern  Europe. 
As  a  summary  of  the  entire  jural  system  of  the  Glossators,  the  works  of 
A/.o  may  at  least  be  placed  upon  an  equality  with,  if  not  above,  the 
i  finer  quoted  Accursian  gloss.  But,  more  thin  this,  his  works  had  un- 
questionably the  greatest  influence  upon  the  formation  of  our  own  common 
law.  No  common  lawyer  can  read  the  Summit  Aurea,  as  it  was  proudly 
called,  without  being  struck  by  the  number  of  his  expressions,  rules,  dis- 
tinctions, etc.,  which  have  found  their  way  into  our  own  early  common 
law.  I  do  not  refer  here  to  the  direct  quotations  made  by  Bracton,  but  to 
those  scattered  through  other  parts  of  his  works,  which  Bracton  did  not 
touch.  They  are  so  numerous,  and  some  of  them  so  peculiar,  that  even  if 
we  did  not  know  of  Bracton's  indebtedness  to  him,  I  think  there  could  be 
no  doubt  that  the  writings  of  Azo  were  more  generally  studied  by  English 
judges  and  lawyers,  in  the  formative  period  of  the  common  law,  than  those 
of  any  other  civilian.  Bracton  has  left  out  all  his  passages  (I  think) 
upon  interpretation,  probably  because  he  regarded  them  as  not  strictly 
appropriate  to  a  work  on  unwritten  law.  But  a  brief  abstract  of  them 
may  not  be  without  interest,  as  bearing  on  the  connection  between  the 
revived  civil  law  and  our  own. 

After  pointing  out  that  the  matters  with  which  the  prince  or  sovereign 
has  to  deal  may  be  classed  under  the  three  heads  of  mere  equity,  settled 
law,  and  that  which  is  observed  as  law,  and  that  with  the  settled  law 
they  deal  in  four  modes,  viz.,  by  interpreting,  by  correcting,  by  restrict- 
ing, and  by  enlarging  it,  Azo  proceeds  (Summa  Codicis,  Lib.  I.,  tit.  1,  ed. 
Lyons,  15%,  p.  3)  :  "And  the  word  interpreting  is  a  general  one,  covering 
all  these  above  mentioned,  for  he  who  corrects  is  said  to  interpret."     He 


23G  APPENDIX. 

then  goes  on  to  furnish  examples  of  its  use  in  the  different  senses,  not  only 
with  reference  to  the  settled  law  (jus  approbatum),  but  also  to  legal  acts, 
such  as  wills,  contracts,  etc.  (id  quod  servatur  pro  lege)  :  "By  interpreta- 
tion they  make  a  condition  to  be  annexed,  which  was  not  annexed;  as, 
where  two  sons  are  made  co-heirs,  with  a  request  that  each  shall  make  the 
other  his  heir  upon  his  death ;  for  the  condition  is  here  implied,  if  he  die 
without  leaving  children.     L.  si  pateo,  Inst,  de  haered.  instituendo  (II.,  14) . 
And  they  make  a  condition  actually  annexed,  to  be  void ;  as,  if  it  be  impos- 
sible, or  immoral.     L.  reprehendenda,  Inst,  de  inst.  et  subst.    They  inter- 
pret a  condition  as  fulfilled,  which  is  lacking;  and  again,  one  as  lacking 
which  is  fulfilled :  as,  where  several  conditions  are  added  in  the  alternative 
to  an  inheritance,  or  a  fidei  commissum,  and  one  of  them  is  fulfilled;  the 
condition  seems  to  be  performed,  but  the  law  interprets  it  as  not  per- 
formed, taking  the  disjunctives  as  conjunctives.     L.  generaliter,  Inst.  II., 
14."     And  after  more  examples  of  this  kind,  Azo  says:  "But  all  these 
fictions  or  interpretations,  in  the  aforesaid  cases  and  in  others,  I  find  may 
be  generically  classed  under  the  ten  predicaments."     And  he  then  goes  on 
to  show  this  by  instances  of  interpretation  or  change  of  the  law,  classed 
under  each  of  the  ten  predicaments,  viz.,  substance,  quantity,  relation, 
quality,  action,  passion,  possession,  place,  time,  situation  (pp.  4,  5).     In 
another  place  (Lib.  I.,  tit.  14,  No.  12,  p.  31)  Azo  says:  "Who  interprets 
laws?    All  who  can  make  them;  so,  also,  custom  interprets  the  law  (L. 
si  de  interpretatione,  and  L.  minime,  Dig.  eod.).     So,  likewise,  a  teacher 
of  law  interprets  it.    But  that  interpretation  is  not  binding.     '  Nam  nemo 
est  addictus  jurare  in  verba  magistri.'    (Azo  evidently  plays  upon  the  word 
"  magister,"  which  was  the  technical  term  in  his  day  for  a  teacher  of  law.) 
So,  likewise,  a  judge  interprets  a  law  in  a  cause;  and  this,  whether  the 
doubt  be  on  the  words  of  the  law,  and  how  they  are  to  be  understood,  or 
whether  it  be  on  a  case  which  is  not  comprehended  in  the  law.    Nor  is 
this  inconsistent  with  the  words  of  the  Institutes,  that  it  is  lawful  and 
proper  for  the  prince  only  to  judge  of  the  interpretation  to  be  interposed 
between  the  strictness  of  the  law  and  the  wider  rules  of  equity;  for  it  is  his 
sole,  prerogative  to  render  an  interpretation  which  shall  be  general  and 
binding,  and  reckoned  a  part  of  the  written  law.     But  while  usual  inter- 
pretation is  general  and  binding,  it  is  not  to  be  reckoned  a  part  of  the 
written  law,  though  any  one  may  by  choice  and  for  his  profit  reduce  it  to 
writing,  that  it  may  be  remembered."    (The  distinction  here  made  by  Azo, 
between  the  force  of  written  law,  and  of  law  that  remains  unwritten, 


APPENDIX.  237 

though  reduced  to  writing,  could  hardly  be  better  expressed  in  our  own 
day.  Indeed,  much  confusion  might  be  saved,  if  all  modern  writers  on  the 
law  kept  it  in  mind.  Compare  with  it  the  remark  of  Sir  11.  S.  Maine, 
Ancient  Law,  pp.  12,  13.)  "  And  it  is  well  to  consider  when  recourse  may 
be  had  to  any  of  the  forementioned  methods.  The  doubt  sometimes 
arises  upon  some  new  state  of  facts,  and  sometimes  upon  a  law.  In  the 
former  case,  the  emperor  must  be  consulted,  provided  he  is  at  hand  and 
accessible.  But  if  not  accessible,  we  must  proceed  by  analogy.  (De 
similibus  ad  similia.)  If,  however,  the  doubt  be  on  the  law,  and  there 
has  been  a  certain  understanding  of  it  by  custom,  that  understanding 
must  be  adhered  to.  But  if  the  sense  of  the  law  has  not  been  made  clear 
by  custom,  then  in  this  ease  also  recourse  must  be  had  to  the  prince,  if 
accessible ;  otherwise,  the  more  favorable  interpretation  is  to  be  taken. 
No  interpretation  is  to  be  made  against  the  party  in  whose  favor  any  law 
lias  been  made;  but  if  doubt  arise  which  be  the  more  favorable  interpre- 
tation, we  must  adhere  to  the  sense  of  the  words.  It  might  seem  that 
this  sense  should  take  precedence  of  the  other  considerations ;  but  this  is 
not  so,  as  has  been  shown.     And  the  last  resort  is  analogy." 

The  chief  interest  of  these  passages,  at  the  present  day,  lies  in  the 
number  of  different  expressions  which  were  afterward  worked  out  into 
distinct  methods  of  interpretation.  It  is  evident  that  Azo  regarded 
analogy  as  a  means  of  interpretation,  and  not  in  the  light  in  which  it  is 
presented  by  recent  writers.  At  the  same  time,  his  reference  to  it  as 
belonging  particularly  to  cases  where  the  doubt  arose  from  the  facts  of 
the  case,  shows  that  the  main  difference,  between  his  view  and  the  modern 
one,  was  in  the  broader  sense  given  to  the  term  interpretation.  This 
included,  with  him  as  with  the  Romans,  all  the  processes  that  went  to  the 
formation  of  new  law,  except,  perhaps,  that  of  legislation  in  its  strictest 
sense;  but  at  the  same  time  the  overshadowing  influence  of  the  great 
Roman  texts  was  preparing  for  that  branch  of  the  subject  which  we 
still  recognize  as  interpretation  a  predominance  over  the  rest,  which  it 
never  again  lost.  This  must  explain  why  Bracton  rejected  the  whole 
subject  from  his  work,  and  thus  did  more  than  all  others  together  to  dif- 
ferentiate the  character  of  English  law  from  the  Continental  systems.  Up 
to  his  time,  England  seems  to  have  been  fully  as  ready  as  any  of  her  sister 
states  to  adopt  the  civilian  jurisprudence.  In  some  respects  she  had 
made  greater  advances  than  the  very  states  the  law  of  which  has  since  been 
most  thoroughly  Romanized,  such  as  Germany  and  Spain.     The  sudden 


238  APPENDIX. 

change  of  tendency  which  we  remark  about  the  reign  of  Edward  I.,  or 
soon  after  Bracton  wrote,  is  the  most  interesting,  and  perhaps  the  most 
difficult  problem  in  the  history  of  English  law.  It  would  no  doubt  be  a 
great  exaggeration  to  ascribe  this  entirely  to  Bracton's  rejection  of  the 
civilian  doctrine  of  interpretation.  But  that  undoubtedly  contributed  to 
the  change,  and  it  may  be  still  more  significant,  as  itself  an  effect  of  the 
deeper-lying  causes  to  which  the  change  was  due.  To  suppose  that 
Bracton  rejected  interpretation  because  it  was  applicable  only  to  written 
law,  would  be  to  give  him  a  view  much  in  advance  of  his  age ;  but  it  may 
still  be  true  that  he  rejected  it  because  of  its  tendency,  at  the  time,  to 
exaggerate  the  importance  of  written  law,  and  especially  of  authentic 
interpretation.  It  is  certain  that  no  English  lawyer,  from  his  time  down 
to  a  very  recent  period,  has  treated  professedly  of  interpretation,  and  this 
omission  has  been  of  the  greatest  importance  in  determining  the  form  of 
the  English  law.  Even  the  many  maxims  on  this  topic,  with  which  Coke 
and  other  writers  deck  their  pages,  were  evidently  culled  in  a  foreign  soil. 
Scarcely  one  of  them  can  be  found  of  indigenous  growth. 

It  should  be  added,  however,  in  this  connection,  that  among  the  civilians 
themselves  there  appears  to  have  been  a  decline  in  the  attention  given  to 
formal  interpretation,  contemporaneous  with  that  great  revival  of  a  more 
vigorous  and  masculine  jurisprudence  which  marks  the  sixteenth  century. 
In  the  writings  of  Cujas  and  Duarenus,  the  two  greatest  jurists  of  that  age, 
we  find  scarcely  a  word  on  the  subject.  They  interpreted  the  laws  freely 
and  ably,  but  they  spent  no  time  upon  the  technical  rules  of  the  process. 
The  same  period  was  marked  by  brevity  and  compactness  of  legal  style. 
Le  Moine,  who,  in  his  preface  to  his  Diplomatique  Pratique  (Metz,  1765), 
complains  of  the  prolixity  of  French  law  aud  conveyances,  attributes  them 
to  the  following  century:  "Lorsque  les  styles  eternels  du  14e  siecle 
prirent  la  place  de  cet  admirable  laconisme  qui  caracterisset  le  siecle 
precedent." 

There  is  a  very  remarkable  passage  in  the  Commentary  of  Cujas  to  the 
title  De  liberis  etpostumis  (Opera  II.,  222  e,  ed.  Francofurti,  1623),  in  which 
he  distinguishes  interpreting  from  supplying  the  sense  of  a  passage.  "  We 
supply  particular  things;  we  interpret  general  ones.  To  supply  is  to 
extend,  and,  as  it  were,  to  amend  the  meaning.  §  1,  Inst,  de  bon.  poss., 
III.,  9.  To  interpret  is  neither  of  these.  We  cannot  supply  where  there 
is  no  law;  we  can  interpret  even  without  a  law."  The  last  sentence  is  very 
significant,  as  showing  that  Cujas  still  held  to  the  loose  and  comprehensive 


APPENDIX. 


239 


meaning  of  the  term,  while  disposed  to  limit  its  employment  and  abuses 
as  much  as  possible. 

But  the  terms  and  rules  of  the  earlier  writers  were  preserved  through 
this  period  by  compilators  like  Menochius,  Barbosa,  and  a  host  of  other 
now  forgotten  "practical"  writers,  and  in  the  latter  part  of  the  seven- 
teenth and  eighteenth  centuries  were  elaborated  into  a  formal  system  by 
"those  civilians  of  marvellous  erudition"  (Anc.  Law,  p.  110),  but  little 
genius,  who  then  filled  the  chairs  of  Holland  and  Germany. 

By  these  writers,  interpretation  was  usually  divided  into  three  kinds, 
according  to  the  source  from  which  it  proceeded,  — viz.,  legal  or  authentic, 
usual  or  customary,  and  doctrinal.  The  first  was  that  which  proceeded 
from  the  legislator  himself.  It  was  a  fundamental  maxim  that  whoever 
had  the  power  of  making  law  had  the  like  power  to  interpret  it;  and  with 
the  very  liberal  meaning  given  to  the  term  interpretation,  and  the  para- 
mount authority  attributed  to  the  compilation  of  Justinian  (the  fragments 
or  passages  of  which  are  usually  meant  by  writers  of  this  period,  when 
the  term  leges  is  employed  without  qualifying  words) ,  this  branch  of  the 
art  had  a  relative  importance  much  greater  than  it  has  ever  since  enjoyed. 
(See  Note  F,  post,  on  Authentic  Interpretation.) 

The  second,  or  usual  interpretation,  was  that  derived  from  custom  and 
usage.  By  this  was  then  understood,  not  the  meaning  given  by  usage  to 
particular  words  or  expressions,  but  all  the  law  which  grew  up  in  the 
course  of  centuries  by  the  combination  of  the  lex  scripta,  or  Eoman  law, 
with  the  customs  of  the  various  nations  that  received  it.  A  favorite  field 
for  the  exercise  of  professional  ingenuity  was  the  interpretation  of  the 
former  in  such  manner  as  to  find  therein  formal  written  authority  for  the 
institutions,  rules,  and  usages  that  the  Germanic  races  had  inherited  from 
their  ancestors.  For  a  century  past,  it  has  been  one  of  the  chief  tasks  of 
the  Continental  jurists,  and  especially  of  the  class  among  them  known  as 
Germanists,  to  restore  these  remains  of  national  law  to  their  original 
shape,  free  from  the  distortions  and  disguises  forced  upon  them  by  this 
Romanizing  process.  Our  own  English  law  suffered  far  less  from  such 
interpretation,  though  traces  of  it  are  to  be  found  even  there.  But  the 
mistakes  made  in  England  in  applying  the  language  of  the  Corpus  Juris 
to  native  customs,  if  less  numerous,  seem  to  have  been  still  grosser;  as 
when  Roman  maxims  and  rules  were  applied  to  English  institutions  with 
which  they  had  nothing  to  do,  simply  from  a  resemblance,  real  or 
fancied,  between  their  names. 


240  APPENDIX. 

For  the  validity  of  this  process  of  customary  interpretation  the  civilians 
found  ample  warrant  in  the  often-quoted  passage  of  Paulus,  "  The  best 
interpreter  of  laws  is  custom  "  (L.  37,  Dig.  de  legibus,  I.,  3),  and  the  many 
other  like  dicta  of  their  authorities.  Hence  some  of  the  writers  of  the 
period  now  under  consideration  included  usual  as  well  as  authentic  inter- 
pretation as  species  under  the  general  term  of  legal  interpretation,  thus 
giving  both  the  preference,  in  point  of  authority,  over  the  third  species 
named  above,  i.e.,  doctrinal  interpretation. 

This  last  was  denned  as  the  interpretation  given  by  "  doctors  "  (teach- 
ers of  law)  and  other  learned  jurists  not  possessed  of  legislative  authority. 
It  differs  from  the  other  two  kinds  iu  not  having,  as  they  did,  equal  authority 
with  the  text  interpreted.  It  rested  upon  its  own  intrinsic  reasonableness 
and  the  arguments  produced  for  it ;  and  also,  as  a  matter  of  course  (though 
this  was  not  so  explicitly  mentioned) ,  upon  the  fame  and  number  of  the 
doctors  who  could  be  quoted  in  its  favor. 

The  foregoing  divisions  were  based  on  the  sources  from  which  the  inter- 
pretation was  derived.  A  different  one,  found  in  the  same  writers, 
expresses  the  nature  of  the  interpretation  itself.  This  was,  simple,  declara- 
tive, or  explicative,  extensive,  and  restrictive.  These  terras  hardly  need 
explanation,  for  they  have  come  down  in  substantially  the  same  senses  to 
our  own  time.  So  far  as  the  definitions  and  rules  given  for  each  respec- 
tively retain  any  interest  for  us  now,  they  will  be  mentioned  in  their  proper 
connection  hereafter.  The  appearance  of  the  division  in  writers  of  this 
period  is  chiefly  interesting  as  marking  the  first  attempt  to  reduce  the 
"  favorable  "  and  "  odious  "  interpretations  of  their  predecessors  to  some- 
thing like  fixed  principles.  Extensiva  interpretatio  respicit  favor  em,  restric- 
tiva  odium,  is  a  remark  quoted  by  Struve  from  an  earlier  writer;  pointing 
out  the  path  by  w'.iich  jurisprudence  advanced  from  a  mere  subjective  dis- 
position to  favor  or  to  begrudge  the  operation  of  a  rule,  to  the  conception 
of  fixed  rules  by  which  the  wider  or  narrower  scope  of  the  law  was  to  be 
measured  independent  of  the  interpreter's  wishes.  But  a  great  step  for- 
ward was  made  in  jurisprudence  when  it  was  first  clearly  shown  that  there 
were  two  entirely  different  processes  of  interpretation,  the  one  of  which 
concerned  itself  with  the  exact  meaning  of  the  words  as  they  stood  in  the 
text,  and  the  other  of  which  looked  beyond  the  meaning  to  some  other 
standard.  What  that  standard  might  be  was  not  always  agreed;  but  it 
was  the  more  advantageous  on  this  account  to  have  all  questions  as  to 
ground  and  purpose  of  the  law,  equitable  constructions,  analogies,  etc., 


APPENDIX.  241 

remanded  to  a  distinct  part  of  the  subject,  away  from  grammatical  inter- 
pretation, which  was  thus  allowed  to  deal  uninterrupted  with  the  plain 
sense  of  the  words.  Under  this  latter  head  naturally  fell  what  had  pre- 
viously been  called  simple  or  literal  interpretation,  and  the  eases  where  no 
interpretation  was  necessary,  according  to  the  theory  that  interpretation 
dealt  only  with  obscure  or  difficult  passages.  The  true  force  of  the  text 
was  fell  more  clearly  when  these  plainer  eases  were  put  by  themselves; 
and  we  probably  owe  to  this  division  our  modern  freedom  from  the  extrava- 
gant and  forced  constructions  so  common  in  earlier  law,  especially  in  cases 
where  a  pretence  was  made  of  following  the  equity  of  a  statute.  The 
Roman  jurists  themselves,  loose  as  their  notion  of  interpretation  was, 
•could  not  help  protesting  against  the  abuse  of  this  term  (Paulus,  in  L.  91, 
§  3,  Dig.  de  V.  0.  (XLV.,  1),  and  acknowledging  that  words  so  interpreted 
defied  all  definition.  Scoevola,  in  L.  14,  pr.  Dig.  dc  div.  temp,  prescript. 
(XLTV.,  3) .  For  the  later  abuse  of  equitable  interpretation,  see  the  note  on 
that  subject,  post.  If,  with  our  more  liberal  notions  of  construction  in 
general,  we  are  comparatively  free  from  such  abuses,  we  owe  it,  in  part  at 
least,  to  the  exclusion  of  equitable  from  the  field  of  grammatical  inter- 
pretation. 

A  much  greater  advance,  however,  in  the  same  direction  was  made 
when  the  distinction  was  first  recognized  as  that  of  grammatical  and  logical 
interpretation.  The  previous  distinctions  had  dealt  with  the  sources 
of  interpretation  —  authentic,  usual,  doctrinal;  or  with  the  effect  —  simple, 
extensive,  etc.,  as  enumerated  above.  But  this  relates  to  the  very  nature 
of  the  process,  and  implies,  as  well  as  opens  the  way  for,  a  scientitic  theory 
of  that  process.  Consequently  it  has  retained  its  place  in  works  on  the 
subject  to  the  present  day. 

When  these  terms  were  first  used,  I  am  not  prepared  to  say.  I  have  not 
found  them  in  any  writer  before  the  sixteenth  century,  and  they  do  not 
become  the  principal  divisions  of  the  subject  before  the  eighteenth. 
There  are,  indeed,  much  earlier  references  to  the  difference  between  the 
words  and  the  intention  of  the  law.  That  distinction  is  too  obvious  to 
escape  notice.  It  is  made  by  the  classic  jurists  under  such  terms  as  verba 
legis,  sententia  legis,  and  is  clearly  enough  referred  to  by  Cicero  and  Quin- 
tilian.  The  essay  of  Thibaut  on  the  Logical  Interpretation  of  the  Roman 
Law,  first  published  in  17'J'J,  marks  a  new  epoch  in  the  treatment  of  the 
subject.  Although  Thibaut  introduced  no  new  terms,  yet  the  clearness 
with  which  he  defined  those  in  use,  and  reduced  the  whole  process  to  a  few 

16 


242  APPENDIX. 

simple  elements,  made  the  elaborate  divisions  of  his  predecessors  seem 
like  mere  verbiage.  He  made  logical  interpretation  to  deal  alone  with 
the  reason  of  the  law  and  the  intent  of  the  legislator ;  grammatical,  on 
the  other  hand,  to  pay  exclusive  attention  to  the  meaning  of  the  words 
employed,  its  task  being  ended  when  the  sense  of  the  law  could  not  be 
ascertained  by  the  common  rules  of  language.  He  held,  therefore,  that 
the  latter  was  clearly  and  entirely  excluded  in  the  case  of  ambiguous 
laws,  since  a  law  could  not  be  ambiguous  if  its  meaning  were  determin- 
able from  its  words.  Theory  (2d  ed.),  pp.  15,  16.  Again,  the  intent  of 
the  legislator,  and  the  reason  of  the  law,  formed,  according  to  Thibaut, 
the  two  grounds  upon  which  all  logical  interpretation  must  be  based. 
Equitable  interpretation,  restrictive  or  extensive,  with  all  the  reasons  given 
for  it,  and  the  multitude  of  terms  by  which  it  has  been  designated,  belongs, 
therefore,  entirely  to  the  field  of  logical  interpretation,  and  is  entirely  a 
different  thing  from  that  choice  between  the  broader  or  the  narrower 
sense  of  words  (interpretatio  lata,  stricta)  which  is  a  part  of  the  gram- 
matical.    Theory,  p.  52. 

Of  the  connection  between  this  theory  and  Dr.  Lieber's  distinction  of 
construction  and  interpretation  I  shall  speak  in  another  place. 

Thibaut's  great  rival,  Savigny,  made  what  he  considered  an  improve- 
ment upon  this,  by  adding  to  the  divisions  of  grammatical  and  logical  two 
others,  viz.,  historical  and  systematic,  and  defines  them  thus:  "The 
grammatical  element  deals  with  the  language  by  which  the  legislator's 
thought  is  made  our  own ;  and  it  consists,  therefore,  in  showing  by  what 
rules  of  speech  the  legislator  was  governed." 

"The  logical  element  analyzes  the  legislator's  thought,  and  fie  relation 
in  which  its  several  parts  stand  to  each  other." 

"The  historical  element  has  for  its  task  the  previous  condition  of  the 
law,  and  the  change  made  in  it  by  the  law  to  be  interpreted." 

"The  systematic  element  deals  with  those  interconnections  which 
form  the  whole  law  into  harmonious  unity,  and  the  position  which  the 
new  law  is  intended  to  take  in  that  unity."  System,  Vol.  I.,  §  33,  pp. 
213,  214. 

It  seems  plain  that  in  these  two  last  elements  we  have  rather  two  im- 
portant portions  of  the  material  from  which  our  interpretation  is  to  be 
made,  than  elements  of  the  process  itself. 

This  account  may  properly  be  closed  with  the  following  free  translation 
of  a  passage  from  Holtzendorf's  Encyclopaedia,  Vol.  L,  pp.  262,  263,  in 


APPENDIX.  248 

which  Prof.  Brans,  of  Berlin,  gives  the  mosl  recent  expositi >i 

present  l henry : — 

"  It  is  the  first  duty  of  the  interpreter  to  determine  the  exact  meaning  of 
each  rule  of  law,— i.e.,  the  thought  of  the  legislator  in  enacting  it.    This 
may  be  done  in  two  methods:  a  postt  riori,  from  the  word-,  as  the  expres- 
sion of  the  thought, to  the  thought  itself;  or,  apriori,  from  the  motivi 
elements  from  which  the  legislator  himself  has  proceeded. 

"(1.)  The  former  method,  a  posteriori)  includes  — 

"(«.)  The  lexical  meaning  of  the  several  words  used. 

"(6.)  The  grammatical  construction  by  which  these  w  ords  are  united  into 
sentences. 

"(c.)  The  combination  of  these  sentences  to  express  a  thought,  according 
to  the  rules  of  formal  logic. 

"(2.)  The  elements  out  of  which  the  thought  or  purpose  of  a  law  is  com- 
pounded, and  from  which,  therefore,  a  priori  conclusions  as  to  its  contents 
may  be  drawn,  are  its  past,  present,  and  future,  —  i.e.: 

"(a.)  Its  origin  and  growth  from  antecedent  circumstances,  or  its  his- 
torical connection  with  the  whole  system. 

"(6.)  Its  dogmatic  connection  with  the  system,  as  jus  commune,  jus  sin- 
gulare. 

"(c.)  Its  legislative  purpose  or  intended  effect. 

"  Both  ways  or  means  must,  of  course,  be  employed  for  the  complete  inter- 
pretation of  a  law;  they  complement  and  prove  each  other  mutually.  It  is 
a  gross  mistake  to  suppose  that  the  words  alone  compose  the  law,  and  that 
the  meaning  or  spirit  — the  more  ideal  elements  —  can  only  be  appealed 
to  when  the  words  themselves  are  ambiguous.  Yet  this  has  been  the  tra- 
ditional view,  formulated  in  the  expressions  (inexact  even  on  this  view) 
of  grammatical  and  logical  interpretation.  Savigny  has  successfully 
refuted  this  view,  but  has  been  less  successful  in  trying  to  replace  it 
with  a  new  division  into  four  elements  of  interpretation, — grammatical, 
logical,  historical,  and  systematic. 

"The  law  which  is  to  be  interpreted  consists  essentially  in  the  imposition 
of  a  certain  definite  rule,  upon  definite  facts,  for  definite  reasons,  which 
are  found  in  definite  properties  of  the  facts  to  be  governed  by  the  rule. 
A  distinction  is  made,  therefore,  between  dispositio  legis  and  ratio  I 
Both  are  objects  of  interpretation,  since  the  scope  of  the  disposition  can 
only  be  ascertained  by  the  reason  of  the  law;  and  the  purpose  of  the  law 
is,  properly  speaking,  the  law  Itself.  The  words  are  only  the  means  of 
expressing  the  thought  or  purpose;  and  this  is  truly  the  law.     Conse- 


244  APPENDIX. 

quently,  obscure,  imperfect,  or  ambiguous  words  must  be  interpreted, 
wherever  possible,  by  the  intention  of  the  legislator,  otherwise  ascer- 
tained ;  and  if  it  is  plain  that  the  words  and  intention  do  not  agree,  the 
intention  governs.  Words  too  restricted  must  be  extended,  too  extensive 
must  be  restrained  by  interpretation.  Still,  in  cases  of  doubt,  the  words 
must  be  adhered  to ;  and  merely  harsh,  inequitable,  or  impolitic  provisions 
are  not,  of  themselves,  a  sufficient  excuse  for  departing  from  the  tenor  of 
the  words."     (Brims,  ubi  supra.) 

I  should  have  been  glad  to  add  to  this  note,  if  I  could,  some  account  of 
the  manner  in  which  interpretation  has  been  treated  by  English  writers 
upon  law  since  the  time  of  Bracton,  of  whose  evidently  intentional  omis- 
sion of  the  topic  I  have  spoken  above.  But  there  is  not,  so  far  as  I  know, 
material  for  such  a  sketch  in  the  entire  body  of  our  common  law.  The 
few  English  writers  who  have  treated  of  the  topic  at  all,  have  done  it 
entirely  upon  civilian  models.  The  rest  have  ignored  it  altogether.  There 
is  a  curious  passage  in  the  "Doctor  and  Student "  which  shows  that  in  the 
sixteenth  century  the  word  was  taken  in  the  loosest  possible  sense,  and 
even  opposed  to  the  strict  notion  now  conveyed  by  it,  and  which  was  then 
represented  by  the  term  exposition  :  — 

"Truth  it  is,  that  sometimes  the  intent  of  a  statute  shall  be  taken 
farther  than  the  express  letter  stretcheth ;  but  yet  there  may  no  intent  be 
taken  against  the  express  words  of  the  statute,  for  that  should  be  rather 
an  interpretation  of  the  statute  than  an  exposition.''''  Doctor  and  Student, 
Dialogue  I.,  c.  28  (Clarke's  ed.),  p.  83. 

The  most  elaborate  treatment  of  the  subject  that  I  have  found  in  an 
English  work,  prior  to  the  present  century,  is  in  Rutherforth's  Institutes; 
and  that  is  hardly  an  exception  to  what  has  been  said,  since  Rutherforth's 
work  is  avowedly  little  more  than  a  compilation  from  Grotius.  He  divides 
interpretation  into  literal  and  rational  (corresponding  to  the  grammatical 
and  logical  interpretation  of  the  civilians),  but  destroys  all  the  value  of 
the  distinction  by  adding,  as  a  third  kind,  "mixed  interpretation,  partly 
literal  and  partly  ratioual ;  we  collect  the  intention  of  the  speaker  or  the 
writer  from  his  words,  indeed,  but  not  without  the  help  of  other  conjec- 
tures."    Rutherforth's  Institutes,  Vol.  II.,  p.  307. 

He  also  distinguishes  "  strict"  and  "large,"  and  again,  "  extensive"  and 
"restrictive,"  interpretations.  Ibid.,  pp.  329-331.  The  best  part  of  his 
chapter  on  the  subject  is  where  he  shows  that  interpretation  is  not  confined 
to  doubtful  or  obscure  texts. 

Blackstone  (Law  Tracts,  I.,  13)  informs  us  that  Suarez  and  Puffendo-  ■*, 


APPENDIX.  !']•"> 

"  writers  of  eminence  and  indisputable  authority,  *  *  *  have  reduced 
all  the  methods  of  interpreting  laws  to  three,  by  considering,  first,  the  very 
words  of  the  law  itself ,  verba  legis  ;  secondly,  the  occasion  of  making  it, 
ratio  legis ;  and,  thirdly,  the  intention  of  the  maker,  or  mens  legislatoris. 
An  1  hence  it  is  manifest"  (he  proceeds,  in  his  essay  on  collateral  con- 
sanguinity,  where  the  interpretation,  or  rather  the  construction  of  the 
statutes  of  All-Souls'  College,  Oxford,  is  in  question)  "that  the  beads  of 
our  inquiry  must  be  these:  whether  from  the  letter  of  the  statute,  the 
occasion  of  making  it,  or  the  probable  intentions  of  the  founder,  it 
appears  that  the  kindred  by  hiin  spoken  of  may  continue  to  subsist 
in  infinitum." 

The  only  recenl  attempts  by  English  writers  to  furnish  an  original 
analysis  of  the  process  of  interpretation,  so  far  as  I  have  examined,  are 
those  of  Mr.  Austin,  referred  to  at  the  close  of  the  preceding  note  (A.), 
and  the  following,  by  Professor  Amos:  — 

"Thus,  in  relation  to  all  the  possible  qualifications  in  human  acts,  as 
much  as  to  all  other  matters  of  which  it  treats,  the  language  of  law 
assumes  a  community  of  knowledge  and  sentiment  on  the  part  of  the 
governors  and  the  governed.  Interpretation,  in  all  its  forms,  is  the  process 
by  which  (1)  a  real  and  existing  standing-ground,  afforded  by  this  assumed 
community,  is  determinately  ascertained;  and  (!')  where,  accidentally,  no 
such  community  can  be  so  much  as  even  assumed,  the  most  ready  and 
practical  devices  for  carrying  out  the  general,  social,  and  political  purposes 
for  which  laws  are  provided."  Amos,  Systematic  View  of  the  Science  of 
Jurisprudence,  p.  GO. 


NOTE    C. 


ON  THE    PROVINCE    OF  LEGAL    HERMENEUTICS. 

The  author  has  shown  in  Chapter  I.  that  interpretation  is  necessary 
to  the  understanding  of  all  signs,  and  is  not  confined  to  those  which 
present  some  special  difficulty  or  obscurity.  This  is  a  point  of  some  im- 
portance in  the  definition  of  legal  hermeneutics,  since  it  marks  a  very 
different  conception  of  the  subject  from  that  current  in  the  older  works, 
where  interpretation  was  treated  as  a  process  peculiar  t"  defective  or  im- 
perfect laws,  ami  it  was  assumed  that  laws  (and  other  forms  of  language) 


246  APPENDIX. 

properly  framed  require  no  interpretation.1  Expressions  framed  on  this 
view  are  still  to  be  met  with  in  many  writers,  who  borrow  them  from  older 
works,  or  use  them  without  any  distinct  conception  of  the  subject  as  a 
whole.  But  all  who  have  examined  the  subject  carefully  seem  now  to 
agree  in  holding  that  the  province  of  interpretation  is  as  wide  as  that  of 
expression,  and  that  the  process  of  interpreting  a  clear  form  of  words  — 
e.g.,  a  law  — is  the  same  in  kind  with  that  by  which  we  interpret  an 
obscure  or  defective  one,  though  the  difficulty  and  complexity  of  the  task 
may  vary  widely,  and  lead  to  great  differences  of  degree.  The  result  is, 
as  may  be  seen  in  the  whole  of  the  present  work,  a  much  more  rational 
and  simple  theory  of  interpretation.  As  Savigny  has  well  remarked,'  the 
true  principles  of  interpretation  must  be  founded  on  the  observation  of 
the  process  by  which  we  understand  clear  and  perspicuous  language,  just 
as  the  true  method  of  dealing  with  disease  must  be  based  on  a  careful 
study  of  the  normal  condition  and  functions  of  the  system  in  a  state  of 
health.  Having  analyzed  and  comprehended  the  mental  operations  by 
which  we  arrive  at  the  meaning  of  language  that  presents  no  special 
difficulty,  we  are  then  prepared  to  deal  with  those  cases  in  which,  from 
one  reason  or  another,  language  fails  to  fulfil  its  proper  office  of  impart- 
ing to  us  its  full  and  exact  meaning. 

But  the  acceptance  of  the  term  in  this  wide  sense  makes  it  at  once 
more  important  and  more  difficult  to  distinguish  properly  between  the 
interpretation  and  the  application  of  language.  In  legal  hermeneutics, 
especially,  this  distinction  becomes  of  great  practical  importance.  Its 
neglect  not  only  has  the  effect  of  destroying  the  proper  bounds  of  inter- 
pretation as  a  distinct  province  of  law,  but  it  leads  to  an  immense  amount 
of  confusion  and  error  in  the  application  of  legal  terms  and  rules.3 


i  The  following  passage  from  Gliick  will  serve  to  illustrate  this  view  of  interpre- 
tation: "Interpretation  of  laws  presupposes  that  there  is  an  imperfect,  obscure,  or 
insufficient  law  to  be  interpreted.  A  complete,  clear,  anil  definite  law  needs  no  inter- 
pretation; on  the  contrary,  the  judge  is  bound  t'>  apply  it,  even  though  it  may  seem 
to  him  harsh."  Ausf.  Erlauterung  der  Pandekten,  I.,  '.'OS.  But  how  shall  the  judge 
apply  the  law  until  he  has  ascertained  its  meaning,  or  learned  to  what  objects  it  is 
meant  to  be  applied?    And  what  will  this  process  be  but  interpretation? 

-  System  des  h.  II.  II. ,  I.,  '-'OS. 

3  For  example,  the  question  how  far  parol  evidence  is  admissible  to  contradict  or 
vary  written  instruments— e.g.,  a  written  title  to  land  — is  one  of  interpretation, 
in  the  proper  sense  of  the  word.  On  the  other  hand,  the  ca*c  of  a  resulting  trust 
does  not  depend  on  interpretation  at  all,  but  is  simply  excluded  from  the  application 
of  the  general  rule.    Any  one  who  has  had  occasion  to  examine  recent  cases  of  these 


APPENDIX.  -17 

Law-  are  necessarily  expressed  in  abstract  term-,  each  of  which  repre- 
sents :i  generalization  formed  from  a  greal  varietj  oi  facts  in  a  long 
period  of  time  by  the  concurrent  action  of  the  entire  people  in  whi 
language  the  term  is  found.  Very  rarely,  if  ever,  does  such  a  term 
express  a  fad  coming  directly  under  the  observation  oi  our  senses.  No 
man  ever  saw  a  murder  or  a  theft,  a  trespass  or  a  conversion  by  one  man 
of  another's  goods.  What  is  seen,  or  directly  known,  is  an  outward  act, 
the  legal  significance  of  which  depends  on  its  relation  to  many  other  facts. 
Such  words  as  those  above  mentioned  constitute  the  middle  terms  in  the 
syllogisms  to  which,  ;h  ha-  often  been  remarked,  all  legal  questions  may 
be  reduced.1 

The  process  by  which,  having  this  term  given,  we  discover  it-  meaning, 
or  the  facts  which  maybe  subsumed  under  it,  is  interpretation;  the  process 
by  which,  starting  with  certain  facts,  we  ascertain  the  legal  categoryunder 
which  they  must  be  placed,  and  the  rule  of  law  which  is  to  govern  them, 
is  that  of  the  application  of  the  law.  These  two  terms,  therefore,  taken 
in  their  full  extent,  are  each  the  converse  of  the  other:  one  denoting  the 
process  by  which  we  descend  from  the  general  to  the  particular;  the  other, 
that  by  which  we  rise  from  the  particular  to  the  general.  If  this  were  all, 
there  would  be  no  need  of  distinguishing  between  them.  But  differences 
of  degree  sometimes  are  practically  as  important  as  differences  of  kind; 
and  there  is  a  very  great  difference  of  degree  between  the  two  extremes 
of  the  process  we  have  described.  The  immense  variety  of  facts  coining 
to  the  cognizance  of  courts  of  justice  makes  the  process  of  reducing  these 
to  roughly-framed  categories  or  general  terms  an  indispensable  one,  occur- 
ring in  almost  every  case.  On  the  other  hand,  it  is  only  the  more  important 
terms  the  interpretation  of  which  receives  and  rewards  careful  investiga- 
tion. Hence  the  division  into  two  parts:  in  one  of  which  the  process  of 
interpretation  prevails  ;   in  the  other,  that  of  application. 


kinds,  in  some  of  our  States  at  least,  knows  very  well  that  it  is  impossible  to  deter- 
mine from  them  when  a  given  case  will  be  governed  by  one  rule  or  the  other.  The 
definitions  on  either  band  may  be  accurate  enough,  bul  the  connection  between 
these  an  I  the  facts  1-  so  vague  that  the  c  tses  are  utterly  useless 

1  In  English  b  loks  the  remark  i-  usually  limited  to  pleading.  Gould's  PI.,  Chap.  I., 
§§:-■.'.".:  Lube's  Bq.  Pl.,Pt.  11., chap.  [.,§  2,  pp.  170-175.  But  the  same  truth  bear-  a 
wider  application.  "The  application  of  every  law  may  be  presented  in  the  form  of 
a  Byllogism,  in  which  the  legal  provision  constitutes  the  major  premise;  and  after 
this  has  been  determined,  the  question  is  upon  the  subsumption  of  facts  in  the 
minor."    Trendelenburg,  Naturrecht  auf  dem  liruudo  tier  Ethik,  §  7S. 


218  APPENDIX. 

This  seems  to  be  the  true  meaning  of  the  distinction  which  some  modern 
writers  make  between  interpretation  and  application.  Thus,  Vangerow,' 
defining  the  former  term  (Auslegung)  as  the  derivation  of  points  of  law 
from  a  given  rule,2  treats  of  the  application  of  laws  as  an  entirely  distinct 
subject  (anwendung),  and  under  that  rubric  discusses  the  effect  of  the  law 
in  place  and  time,  the  retrospective  effect  of  statutes,  etc.  But  it  is  evi- 
dent, as  already  said,  that  the  difference  of  the  two  topics  is  not  in  the  kind 
of  matter  treated,  but  only  in  the  relative  degree  of  attention  bestowed  in 
the  one  case  upon  the  language  employed,  and  in  the  other  upon  the  facts 
to  which  that  language  is  supposed  to  be  applicable.  We  interpret  lan- 
guage by  pointing  out  the  facts  to  which  it  is  applicable :  we  apply  it  by 
inquiring  what  facts  are  embraced  in  the  terms  of  which  the  law  or  prop- 
osition is  composed;  and  we  name  the  proceeding  as  our  attention  is- 
directed  to  the  one  or  the  other  element. 

In  the  reaction  from  the  former  error,  which  supposed  interpretation  to- 
be  applicable  only  to  a  limited  class  of  laws  (or  other  signs  of  expression) 
supposed  to  call  for  it  by  special  obscurity  or  ambiguity,  some  writers  have 
gone  to  the  other  extreme,  and  treated  the  province  of  legal  interpretation 
as  embracing  the  entire  field  of  law,  unwritten  as  well  as  written.  They 
argue3  that  interpretation  (in  the  broader  sense  in  which  it  is  used  to 
denote  the  entire  subject  or  province  of  the  law,  including  what  our  author 
has  termed  construction  as  well  as  interpretation  proper)  has  for  its  office 
not  only  to  explain  the  meaning  of  the  words  used  by  the  legislator,  but 
also  to  ascertain  his  intention,  and  to  give  effect  to  this  intention  even 
when  it  differs  from  the  literal  meaning  of  the  terms  employed  by  him ; 
and  that  this  latter  process  is  equally  applicable  to  the  unwritten  law. 


1  Leitfaden  der  Pandekten-Yerlesungen.I.,  §21. 

-  Ableitung  von  Rechtssatzen  aus  einem  gegebenem  Gesetze.  Compare  Savigny's 
statement,  quoted  in  note  3,  upon  page  9,  ante. 

3  Windsoheid.Lehrbuch  des  Pandekten-Rechts,I.,§§20,22.  "Commonly  we  speak 
only  of  the  interpretation  of  written  laws,  but  that  is  too  narrow ;  the  rules  of  the 
customary  law  are  equally  capable  and  equally  in  need  of  interpretation.  Not, 
indeed,  in  altogether  the  same  sense  as  the  statutes,  since  one  task,  and  that  the 
first,  which  interpretation  has  to  perform  upon  the  statutes  is  inapplicable  to  cus- 
tomary law.  Statutes  are  expressed  in  words;  the  rules  of  law  given  in  them  are 
formulated;  the  first  question  is,  What  sense  has  the  legislator  meant  to  convey  by 
the  words  he  has  employed?  This  question  cannot  arise  in  customary  law,  since  it9 
rules  do  not  appear  in  the  form  of  human  language.  But  after  the  meaning  of  the 
•words  of  a  statute  has  been  ascertained,  there  arises  a  second  question  of  interpre- 
tation,—and  this  is  equally  applicable  to  customary  or  unwritten  law,  — the  ques- 
tion, What  was  the  intention  of  the  legislator,  lying  behind  his  words?"    lb.,  pp.  50,54. 


APPENDIX.  249 

If  this  were  true,  it  would  be  evident  that  legal  hermeneutics  would 
cover  the  whole  field  of  law  as  an  applied  science,  and  that  any  attempt  to 
treat  it  as  a  separate  province  would  be  useless.  But  a  little  reflection 
discloses  the  fallacy.  Of  the  process  by  which  we  determine  what  the 
unwritten  law  applicable  to  a  given  case  is  there  is  a  portion  which 
exactly  corresponds  to  the  construction  of  a  rule  of  written  law.  Bat  it 
is  only  a  portion,  and  very  far  from  the  entire  process.  At  the  same  time- 
it  is  inextricably  blended  with  the  rest  of  the  process.  We  cannot  divide 
into  two  processes,  that  of  ascertaining  what  the  rule  of  law  actually  i~, 
ami  that  of  determining  whether  the  given  case  comes  within  it,  but  we 
must  carry  on  the  two  operations  together,  simply  because  we  lack  any 
fixed  standard  by  which  to  measure  the  contents  of  the  rule  of  unwritten 
law,  other  than  the  general  reasons  by  which  we  determine  it  to  be  a  rule.1 
It  is  the  existence  of  such  a  fixed  standard,  in  the  text  or  letter  of  the  law, 
which  distinguishes  the  written  law  from  the  unwritten,  and  enables  us  to 
divide  (  in  the  former  case)  the  process  of  ascertaining  what  the  law  really 
is  from  the  process  of  determining  what  facts  are  to  be  included  under 
it;  that  is,  of  interpreting  or  construing  it.  All  that  is  peculiar  or  char- 
acteristic in  the  science  of  legal  hermeneutics,  all  that  renders  it  either 
possible  or  useful  to  treat  it  as  a  separate  brancb  of  the  law,  depends  on 
the  existence  of  a  certain  tert,  a  definite  form  of  words  emb  (dying  and 
formulating  the  law,  such  as  we  find  in  the  written  law  and  not  else- 
where. 

It  may  be  worth  while  to  remember  that  the  process  of  construing  writ- 
ten law  is  strictly  analogous  to  a  part  of  the  process  by  which  we  ascertain 
and  apply  that  which  is  unwritten;  but  for  the  sake  of  accurate  thought 
it  is  more  important  to  bear  in  mind  that  construction  as  well  as  interpre- 
tation—  the  entire  doctrine  of  legal  hermeneutics  —  is  confined  to  the 
written  law  and  presupposes  a  text. 

An  illustration  of  the  practical  difference  between  interpretation  and 
application  may  be  found  in  §  39  of  this  work,  where  the  author,  after 
speaking  with  just  severity  of  the  doctrine  formerly  held  by  the  Star- 
Chamber, — that  slanderous  words  admitted  a  double  interpretation,  and 
that  a  barsh  interpretation  might  be  put  on  words  uttered  by  a  commoner 
against  a  peer,  while  the  same  words  uttered   by  a  peer  against  a  com- 


i  Jna  commune,  interpretatum  a  consnetudine,  est  idem  quod  ipsa  c'>i)  =  iietudo 
inlerprctans.    Baldus,  as  quoted  in  Menock.  de  Praesump.,  Lib.  II.,  prsef.  0,  §  9. 


250  APPENDIX. 

moner  would  be  mildly  interpreted,  —  goes  on  to  say:  "  Had  the  principle 
been  that  the  same  words  used  against  some  persons  are  more  punishable 
than  against  others,  the  case  would  have  been  different."  It  is  plain 
that  the  result  in  both  cases  —  the  punishment  inflicted  —  may  be  the 
same ;  but  who  does  not  see  the  difference  between  stating  it  as  a  differ- 
ent interpretation  of  the  words,  and  a  different  application  of  them  to  the 
circumstances? 


NOTE    D. 

ON  THE  TERM  "SOVEREIGNTY." 
.Many  fallacies  have  been  produced  by  the  use  of  the  term  sovereignty 
in  the  vague  and  changing  senses  of  which  the  author  speaks  in  this  pas- 
sage (ante,  p.  2-i).  Even  now  it  is  constantly  employed  to  connote  two 
entirely  different  things,  the  connection  of  which  is  by  no  means  neces- 
sary, but  depends  upon  theories  of  law  now  very  generally  rejected.  The 
sovereignty  of  a  state,  in  its  relation  to  other  states,  is  of  course  equiv- 
alent to  complete  independence,  —  except  when  the  term  is  used  with 
reference  to  the  relation  of  the  States  to  the  Federal  Union,  or  to  sim- 
ilar cases  of  divided  sovereignty,  with  which  we  have  nothing  to  do  at 
present.  Of  course  this  sovereignty  implies  autonomy.  The  sovereign 
state  makes  its  own  laws,  and.  is  governed  by  them  and  them  only. 
Nothing  is  law  within  its  borders  except  that  which  is  enforced  as  such 
by  its  own  authority,  and  may  therefore  properly  enough  be  considered 
as  the  expression  of  its  individual  and  indivisible  will.  This  may  be 
called  the  external  or  international  seuse  of  the  term. 

But  when  it  is  inferred  from  this,  that  there  must  be  within  the  state  a 
definite  indivisible  power  in  which  that  relation  to  other  states  is  embod- 
ied, and,  so  to  speak,  personified,  we  have  altogether  changed  the  meaning 
of  the  term,  and  the  deductions  which  may  be  drawn  from  it.  That  there 
must  necessarily  be  such  a  sovereign  within  the  state,  and  that  all  its  laws 
must  derive  their  force  and  binding  authority  over  the  citizens  from  his 
will  and  sanction,  may  or  may  not  be  true,  according  to  the  theoiy  we 
adopt ;  but  it  does  not  necessarily  follow  from  the  conception  of  sover- 
eignty in  the  former  sense.  Yet  we  very  frequently  see  the  term  employed 
as  if  this  were  the  case,  aud  as  if  all  the  reasons  which  make  a  state  sover- 


APPENDIX.  -•"' 1 

eign  with  respect  to  its  neighbors  were  necessarily  reasons  for  maintain- 
ing the  existence  or  at  leasl  the  action  of  a  sover  sign  within  the  state. 
The  theories  by  which  the  \>-vy  essence  of  a  law  is  m  i  I  i\  in  the 

command  of  a  superior  to  an  inferior,  have  been  k  pt  alive  among  as  by 
the  notion  that  a  state  could  not  lie  sovereign  otherwise,  more  than  by 
any  other  argument.  It  being  assumed  that  sovereignty  is  an  essential 
characteristic  of  the  state,  — which  is  true  when  sovereignty  means  inde- 
pendence,  —  it  is  inferred  that  there  musl  be  a  sovereign  to  govern  the 
state  and  impose  laws  upon  subject-:  which  is  entirely  false  in  -: 
constituted  like  ours.  A  referenc  ■  to  Mr.  Austin's  ase  of  the  term,  in  his 
well-known  Lectures  on  Jurisprudence,  will  illustrate  the  fallacy  better 
than  any  examples  which  could  be  quoted  here,  without  exceeding  the 
limits  of  a  note;  but  it  deserves  mention  that  Judge  Wilson,  of  Pennsyl- 
vania, who  was  himself  one  of  the  founders  of  our  government,  poi 
out  the  fallacy  of  these  theories,  and  the  non-existence  of  sovereignty  in 
their  sense  of  the  term,  almost  a  century  ago.  See  his  Lectures  on  Law, 
Chi  p-.  II.  and  V.,  in  his  works  (Phil.,  1801),  Vol.  I.,  especially  pp.  00-99, 
180,  etc.,  where  he  denies  the  existence  of  sovereignty  in  this  sense,  and 
refutes  the  arguments  of  Blackstone  (1  Comm.  43-51),  Puffendorf  (Law 
of  Nature  and  Nations,  Book  VII.,  chap.  G,  sec.  3),  and  Paley  (2  Moral 
and  Political  Philosophy,  183)  in  its  favor. 

The  following  references  may  be  found  of  interest,  in  connection  with 
this  topic :  — 

The  sovereignty  exists  in  the  whole  body  of  French  citizens.  It  is 
inalienable  and  imprescriptible.  No  individual,  no  fraction  of  the  people, 
can  arrogate  to  themselves  its  exercise.  Chap.  I.,  Art.  I.,  French  Consti- 
tution of  1818,  quoted  at  length  in  appendix  to  Dr.  Lieber's  Civil  Liberty 
(3dcd.,  Phil.,  1875). 

The  idea  of  undivided  sovereignty  leads  to  having  no  legislature,  no  di- 
vision of  power,  —  nothing  but  a  succession  of  popular  sultans.  Lieber's 
C.  L.  2SG. 

What,  in  a  philosophical  sense,  can  truly  be  called  sovereignty,  can  never 
be  divided,  ami  its  division  need  not  therefore  be  guarded  against.  Sov- 
ereignty i<  the  self-sufficient  source  of  all  power,  from  which  all  specific 
powers  are  derived.  It  can  dwell,  therefore,  according  to  the  views  of 
freemen,  with  society, — the  nation  only;  but  sovereignty  is  nut  absolut- 
ism.    Lieber's  < '.  I..  152. 

Sovereignty  and  sovereign  states.  Woolsey's  Political  Science,  Vol.  I., 
p.  202. 


252  APPENDIX. 

Sovereignty.     Lieber's  Political  Ethics,  Vol.  I.,  p.  216. 
The  distinguishing  marks  of  sovereignty.     Austin's  Jurisprudence,  Vol. 
I.,  p.  226. 

Story  on  the  Constitution,  Vol.  I.,  §  207. 


NOTE     E. 

AUTHENTIC  INTERPRETATION. 

It  seems  doubtful  if  the  conception  of  authentic  interpretation  was 
formed  in  the  Roman  law  until  after  the  period  of  the  great  classic  jurists. 
We  know  from  Justinian's  own  statement,  that  even  in  his  time  the  power 
of  the  emperor  to  give  to  his  interpretation  of  a  prior  law  binding  force 
was  regarded  as  a  doubtful  question,  until  he  himself  decided  that  the 
doubt  was  absurd,  and  that  the  emperor's  power  to  interpret  the  laws 
rested  on  the  same  base  with  his  power  to  form  law  by  judicial  decision. 
Code,  Lib.  I.,  Tit.  14,  12. 

In  the  nature  of  the  case,  there  could  hardly  be  authentic  interpretation 
of  any  extent  or  importance  while  the  legislative  power  existed  only  in 
such  bodies  as  the  Roman  people  or  the  Senate.  To  the  jurisprudentes, 
who  exercised  the  only  oflice  known  as  interpretation  during  the  republic 
and  early  empire,  any  such  claim  as  that  of  authentic  interpretation  would 
have  been  utterly  absurd,  and  incongruous  with  their  functions  as  they 
conceived  them.  It  is  to  the  changes  which  came  over  the  Roman  law 
during  the  third  century  of  our  era  that  we  may  trace  the  first  rise  of 
authentic  interpretation.  The  law  was  no  longer  developed  by  magisterial 
edicts,  and  the  rapid  growth  of  absolute  power  left  no  place  for  its  further 
development  by  a  body  of  free  jurists,  even  if  such  jurists  had  been  there 
to  continue  the  work  of  their  great  predecessors.  The  law  had  ceased  to 
grow  by  any  other  method  than  by  imperial  constitutions.  It  had  culmi- 
nated in  the  perpetual  edict  and  the  works  of  the  classic  jurists,  and 
henceforth  the  highest  aim  of  Roman  jurisprudencs  was  to  understand  and 
apply  the  rules  which  they  already  possessed.  Under  such  circumstances, 
the  power  of  interpretation  was  too  important  not  to  be  arrogated  by  him 
who  possessed  all  power  in  the  state  beside ;  especially  as  the  line  between 
interpretation  and  the  framing  of  new  law  had  always  been  so  completely 
disregarded  by  the  earlier  jurists.     The  first  express  assumption  of  the 


APPENDIX.  253 

power  is  found  in  a  constitution  of  Constantino,  addressed  to  one  of  the 
highest  magistrates,  —  the  prefectus  urbi.  It  says,  "the  emperor  alone 
has  the  prerogative  of  modifying  the  strict  law  by  equitable  interpreta- 
tion."1 

The  emperor  thus  expressly  reserves  to  himself  the  power  previously 
exercised  by  the  praetor  and  the  jurists.  We  find  declarations  to  the 
same  effect  repeated  by  Valentinian,  Marcian,  Leo,  and  Zeno.1 

But  in  the  legislation  of  Justinian  this  power  of  authentic  interpreta- 
tion first  takes  the  form  in  which  for  thirteen  centuries  it  has  weighed 
upon  and  distorted  the  natural  growth  of  human  law.  In  a  constitution 
of  the  year  529,  addressed  to  the  praetorian  prefect,  he  asserts  that  every 
interpretation  proceeding  from  the  emperor  has  the  perfect  force  of  law, 
and  he  expressly  forbids  all  interpretation  by  others.  The  power  to 
interpret  is  distinctly  based  upon  the  power  to  legislate.3 

Substantially  the  same  rule  was  repeated  four  years  later  in  the  promul- 
gation of  the  new  Code.  After  forbidding  all  comments  upon  the  Code,  he 
ordains  that  if  any  doubt  arise  respecting  the  meaning  of  a  law,  the  judges 
shall  submit  it  for  decision  to  the  emperor,  to  whom  alone  it  belongs  alike 
to  frame  and  to  interpret  the  laws.4 

The  power  thus  arrogated  by  the  emperor  became  an  integral  part  of 
the  Roman  law,  and  has  thus  influenced  the  entire  law  of  modern 
Christendom.  It  was  perhaps  the  natural  consequence  of  the  relation  in 
which  the  Raman  law  stood  to  its  first  mediaeval  interpreters  that  they 
should  be  led  greatly  to  exaggerate  the  value  and  importance  of  authentic 
interpretation.  The  wisdom  embodied  in  the  Pandects  and  Code  must 
have  seemed  then  almost  superhuman  as  compared  with  any  laws  or 
writings  upon  jurisprudence  produced  by  their  own  contemporaries,  or  by 
the  men  of  the  intervening  centuries.  And  as  it  was  the  fashion  of  the 
age  to  ascribe  it  all  to  Justinian,  as  a  legislator  in  the  strict  sense  of  the 
word,  and  as  their  best  means  of  interpretation  unquestionably  was  by 
comparison  of  the  different  passages  which  they  found  sanctioned  by  his 


>  Inter  aequitatem  jusque  intcrpositam  interpretationem  nobis  solis  et  oportet  et 
licet  inspieere.  I.,  l,  C.  de  leg.  (I.,  14) ;  also  in  L. :;,  ('.  Th  de  div.  roscr.  (l,  -J).  This 
passage  relates  to  changes  in  the  law,  ami  not  merely  to  equitable  interpretation  of 
a  text,  as  clearly  shown  by  Savigny.     .Sys.,  sec.  37,  note  /,  and  sec.  47,  p.  300. 

2  L.  9,4,  11,  C.  de  leg.  (1,  14). 

:i  L.  12,  C.  de  leg.  (1,  14).    The  entire  constitution  is  translated  and  commented  on 
by  Savigny.    Sys.,  sec.  47,  Vol.  [.,  pp.  301,304. 
*  L.2,  §     21,  C.  de  vet.  jure  enucl.  (1,  17). 


254  APPENDIX. 

name,  we  can  hardly  wonder  that  interpretation  by  the  lawgiver  himself 
was  regarded  as  not  only  possessing  peculiar  authority,  but  also  as  having 
a  relative  importance  in  the  construction  of  a  system  of  law  which  the 
experience  of  later  ages  has  been  very  far  from  awarding  to  it.  This  was 
in  harmony  also  with  the  theory  of  law  then  generally  accepted :  that  the 
distinguishing  mark,  the  specific  difference,  of  all  true  law  lay  in  its  enact- 
ment by  a  sovereign. 

But  whether  this  be  the  true  explanation  or  not,  it  is  certain  that  with 
the  Glossators,  and  their  successors  for  some  centuries,  authentic  inter- 
pretation had  a  place  and  rank  peculiarly  its  own.  They  seized  upon  the 
passages  in  the  C.  J.  C.  by  which  its  claims  were  recognized  (such  as  cujus 
est  jura  prsescribere  illius  etiam  est  eadem  interpretari.  L.  9,  Cod.  de 
legibus,  I.,  14 ;  Novell.  143,  praef.  Legum  interpretandarum  omne  princip- 
ium  et  fundamentum  in  summa  potestate  constituendum  est.  L.  43,  pr. 
Dig.  de  vulg.  et  pup.  subst.,  XXVIII.,  6),  and  gave  them  factitious  weight 
by  severance  from  their  context.  It  was  formally  laid  down  that  the 
interpretation  of  the  law,  and  its  application  to  actual  cases,  was  in  a 
special  sense  the  office  of  the  sovereign,  and  that  whatever  interpretation 
the  magistrate  or  the  jurist  was  allowed  to  apply  could  only  be  justified 
by  supposing  a  delegation  of  that  power  to  him.  This  delegated  power 
of  interpretation  was  further  restricted  by  holding  that  the  authority  of  a 
passage  so  construed  by  a  magistrate  or  a  teacher  of  law  did  not  extend 
beyond  the  single  case  in  which  it  was  applied ;  while  the  interpretation 
of  the  sovereign  became  law  as  fully  as  the  text  that  called  for  it,  and 
was  therefore  binding  on  all  inferior  tribunals  and  persons,  not  only  in  its 
direct  terms,  but  also  in  all  the  consequences  and  analogies  which  could 
be  derived  from  it. 

It  is  needless  to  dwell  longer  upon  the  development  of  the  doctrine,  or 
to  show  its  adoption  by  the  various  states  of  modern  Europe,  or  the 
manner  in  which  it  has  been  expanded  and  applied  by  modern  civilians. 
Until  within  a  century,  there  seems  hardly  to  have  been  a  doubt  of  its  fit- 
ness and  consistency.  Indeed,  with  the  theories  of  law  generally  accepted 
from  the  Middle  Ages  to  the  French  Revolution,  which,  however  much 
they  might  differ  in  other  respects,  agreed  in  holding  that  it  was  of  the 
very  essence  of  law  to  be  prescribed  by  a  sovereign,  this  could  hardly  be 
otherwise.  It  was  not  until  Montesquieu  made  men  familiar  with  the 
principle  of  the  division  of  the  powers  of  government  into  three  great 
departments,  that  a  basis  was  laid  for  a  successful  criticism. 


APPENDIX. 


255 


"Accurately  speaking,  authentic  Interpretation  is  no  interpretation,  but 

rather  additional  legislation.  We  would  distinctly  exclude,  however, 
retrospecHvt  authentic  interpretation;  for  this  amounts,  indeed,  to  an 
application  of  the  law  by  the  Legislature,  and  is  incompatible  with  a  true 

government  of  law."  ' 

It  may  be  worth  while,  however,  to  trace  briefly  the  steps  which  led  to 
the  modern  view  of  the  doctrine  in  France.     Prior  to  the  Revolution,  the 
kin-  being  the  only  legislator,  the  maxim  "Ejus  est  interpretari  legem, 
cnjns  est  condere,"  was  accepted  without  question.    The  ordinance  of  1C67 
(Tit.  1,  art.  7)  expressly  ordained  that  if  in  the  higher  court-  any  question 
arose  respecting  the  interpretation  of  the  king's  laws,  it  was  to  be  re- 
ferred to  the  king  himself.     In  1790,  when  the   power  of  legislation  had 
been  committed  to  an  assembly,  the  statute  of  August  lGth-24th  (Tit.  2,  art. 
12)  directed  the  judges  to  apply  to  the  legislative  body  in  all  cases  where 
they  deemed  necessary  an  interpretation  of  the  law,  or  a  new  statute.    That 
which  established  the  Court  of  Cassation,  of  November  27th  to  December 
17,  1790  (art.  21),  provided  that  when  any  point  came  before  the  court 
for  the  third  time  upon  error  from  the  court  below,  the  court,  instead  of 
emitting  simply  a  judgment  of  cassation,  should  report  the  matter  to  the 
legislative  body,  which  should  then  pass  a  declaratory  resolution  (dccret 
dedaratoire),  which  should  be  approved  by  the  king,  and  should  be  the 
basis  for  all  subsequent  action  of  the  court.     Here  we  have,  evidently,  a 
new  law  authentically  interpreting  the  former,  and  retrospective  in  its 
action.     A  similar  provision  was  contained  in  the  Constitution  of  S-pt  em- 
ber 3,  1791,  but  art.  256  ordered  recourse  to  be  had  to  the  legislative 
body  upon  the  firsl  cassation.     By  the  law  of  18th  Vindemiaire,  of  the  year 
VI.  (1797),  a  similar  rule  was  applied  to  the  Councils  of  Revision,  which, 
in  military  matters,  constituteda  Court  of  Cassation.     We  find,  however, 
in  the  law  of  27th  Ventose,  of  the  year  VIII.  (1799),  by  which  consider- 
able changes  were  made  in  organization  of  the  courts,  that  the  aid  of  the 
legislative  body  was  not  to  be  invoked  until  the  third  time,  —  a  provision 
being  added,  that  on  the  second  recurrence  of  the  same  point  it  should 
be  heard  in  a  joint  session  of  all  the  chambers  of  the  court.     The  law  of 
September  10,  1807,  transferred  the  power  of  authentic  interpretation  to 
the  emperor  in  council.     It  also  gave  to  the  Court  of  Cassation  the  power 
to  refer  the  matter  to  that  body,  before  hearing  the  same  point  a  second 


i  Liebur,  Civil  Liberty  and  SeH-Government  (3d  ed.,  1S75),  p.  203. 


256  APPENDIX. 

time,  or  to  hear  it  in  joint  session,  at  its  option;  and  required  it  to  make 
such  a  reference  before  the  third  hearing.  The  law  of  July  30,  1828, 
introduced  another  change  of  some  significance,  by  requiring  the  Court 
of  Cassation,  on  the  second  hearing  of  the  same  point,  to  remit  it  to 
the  lower  court  for  judgment;  after  which  the  matter  was  to  be  re- 
ported to  the  king,  that  he  might  lay  it  before  the  legislative  chambers, 
in  the  form  of  an  interpretative  act.  Finally,  in  1835,  it  was  enacted 
that,  upon  the  second  decision  of  the  same  point  by  the  Court  of  Cassa- 
tion, the  lower  court  should  be  bound  to  follow  the  law  as  laid  down; 
and  thus  the  necessity  of  authentic  interpretation  was  entirely  done  away 
with.' 

It  should  be  added  that  nearly  all  these  regulations,  from  1667  down, 
were  accompanied  by  express  prohibitions  to  the  judges  to  interpret  the 
law  themselves.  The  distinction  made  between  the  interpretation  so  for- 
bidden, and  that  which  is  absolutely  necessary  in  the  administration  of  all 
justice,  will  be  found  in  the  following  extracts  from  the  discussion  of  the 
projet  of  the  French  Code :  Le  Ministre  de  la  Justice  dit  "  qu'il  y  a  deux 
sortes  d' interpretations,  celle  de  legislation  et  celle  de  doctrine;  que  cette 
derniere  appartieut  essentiellement  aux  tribunaux;  que  la  premiere  est 
celle  qui  leur  est  iuterdite;  que  lorsqu'il  est  defeudu  aux  juges  d'inter- 
preter,  il  est  evident  que  c'est  de  V interpretation  legislative  qu'il  s'agit.  II 
cite  1' Art.  VII.,  du  titre  1"  de  l'ordonnance  de  1667,  qui  defend  aux  juges 
d'interpreter  les  ordonnauces." 

Le  C.  Tronchet  dit  "  que  Ton  a  abuse,  pour  reduire  les  juges  a  un  etat 
purement  passif,  de  la  defense  que  leur  avait  faite  Fassemblee  constitu- 
ante,  d'interpreter  les  lois  et  de  reglementer.  Cette  defense  n'avait  pour 
objet  que  d'cmpeeher*les  tribunaux  d'exercer  une  partie  du  pouvoir  legis- 
latif,  comme  l'avaient  fait  les  anciennes  cours,  en  rlxaut  les  sens  des  lois 
par  des  interpretations  abstraites  et  generates,  ou  en  les  suppleant  par  des 
arrets  de  reglement.  Mais,  pour  eviter  l'abus  qu'on  en  a  fait,  il  faut 
kusser  au  juge  1' interpretation,  saus  laquelle  il  ne  peut  exercer  son 
ministere.  En  effet,  les  contestations  civiles  portent  sur  les  sens  dif- 
fdrents  que  chacune  des  parties  prete  a  la  loi;  ce  n'est  done  pas  par 
une  loi  nouvelle,  mais  par  l'opinion  du  juge,  que  la  cause  doit  etre  de- 


1  For  the  material  of  this  sketch  I  am  indebted  to  an  article  by  M.  Foelix  in  the 
Kritische  Zeitschrift  fUr  R.  und  G.  des  Auslandes.  Band  VII.,  p.  412.  See  also  same 
volume,  p.4S4:  "  De  la  legislation  en  ma  tier  e  d'intepretation  des  lois  en  France,  par 
V.  Fouclier,  avocat-general  a  Iteunes.    Paris.    1SJ5." 


APPENDIX.  257 

cidee.  On  craint  que  lea  juges  n'en  abusent  pour  juger  contre  le  texte  de 
laloi;  s'ils  se  le  pennittaient,  le  tribunal  de  cassation  aneantisait  leurs 
jugements.*' 

Le  C.  Roederer  dit  "que  1' Article  IV.  donne  trop  de  pouvoir  au  juge,  en 
l'obligcant  de  prononcer  meme  dans  le  silence  de  la  loi.  II  appartient  au 
juge  d'appliquer  la  loi;  il  n6  lui  appartient  pas  de  reinplir  les  lacuues  de 
la  legislation,  quand  la  loi  garde  un  silence  absolu." 

I  have  quoted  this  account  of  the  French  law  of  interpretation  at  some 
length,  because  it  illustrates  so  clearly  the  course  of  modern  thought  upon 
the  subject.  In  other  states  as  well  as  France  there  has  been  the  same 
tendency,  unfavorable  to  the  claims  of  authentic  interpretation,  —  the  same 
disposition  to  hold  the  two  offices  of  making  and  applying  the  laws  of 
the  land  entirely  distinct  from  each  other.  It  was  a  part  of  the  same 
movement  of  thought  by  which  the  "divine  right"  of  the  sovereign  to 
impose  his  will  upon  the  subject  as  law  has  been  devoided  of  all  practical 
value,  even  where  it  has  not  been  formally  abandoned. 

But  there  is  another  aspect  of  the  doctrine,  to  which  these  remarks  do 
not  apply.  The  same  distinction  which  has  been  noticed  {ante,  Note  D) 
in  reference  to  the  meaning  of  the  term  "  sovereignty,"  may  be  made  here. 
The  right  of  the  legislator  to  interpret  his  own  laws  has  a  very  different 
meaning  whin  considered  merely  as  between  the  legislators  of  an  Ameri- 
can or  other  modern  state,  and  their  "  subjects,"  and  when  viewed  with 
reference  to  foreign  powers.  The  authentic  interpretation  of  the  state's 
own  law  is  an  indispensable  part  of  its  independence  and  autonomy. 
The  sovereign  state  must  interpret,  as  well  as  form,  its  own  laws.  The 
principle  of  authentic  interpretation  has,  therefore,  an  application  in  the 
jurisprudence  of  the  United  States,  its  connection  with  which  has  been  for 
the  most  part  overlooked,  but  which  will  hardly  be  found,  at  least  in  so 
plain  a  form,  elsewhere.  It  is  evident  that  upon  this  principle  rests  the 
right  of  the  State  and  Federal  courts  respectively  to  interpret  their  own 
constitutions  and  laws,  and  to  require  that  otherwise  independent  tribunals 
shall  follow  such  interpretation. 

The  fundamental  rule  of  this  kind  of  interpretation,  so  often  quoted 
above,  evidently  applies  as  well  between  different  legislative  powers  as 
between  the  legislator  and  his  subjects.  That  each  independent  sovereign 
state  must  have,  not  only  the  right  to  frame  its  own  laws,  but  also  the 
exclusive  faculty  of  expounding  and  interpreting  them,  of  saying  what 
they  mean,  is  too  plain  to  need  any  argument.     That  authentic  interpre- 

17 


258  APPENDIX. 

tation  has  not  been  discussed  in  this  external  aspect,  is  only  because, 
between  states  entirely  independent  of  each  other,  the  principle  was  too 
simple  and  devoid  of  exception  to  require  discussion.  But  in  the  peculiar 
relation  which  the  States  of  the  American  Uuion  hold  toward  each  other, 
and  to  the  national  government,  it  becomes  a  question  of  the  greatest 
importance  to  determine  from  what  source  an  authoritative  interpretation 
of  any  constitution  or  law  may  be  derived,  and  how  far  its  authority 
extends.  To  point  out  that  this  question  is  really  one  of  authentic  inter- 
pretation, may  be  the  means  of  turning  to  practical  use  in  our  own  law 
some  of  the  learning  and  ability  displayed  by  many  generations  of  civilians 
in  treating  of  that  subject,  which  is  now  passed  over  by  most  American 
lawyers  and  writers  upon  law,  as  of  little  or  no  present  value. 

The  right  of  the  United  States  Supreme  Court  to  be  the  final  interpreter 
of  the  Constitution,  laws,  and  treaties  of  the  Union  is  indeed  so  clearly 
defined  by  the  Constitution  itself,  and  the  Judiciary  Act  (1  U.  S.  Stats,  at 
Large,  83;  1  Bright.  Dig.  259),  that  it  would  be  mere  pedantry  to  establish 
it  by  scientific  discussion.  The  Judiciary  Act  (§  34)  also  recognizes  its 
obligation  to  follow  the  State  laws,  where  they  apply.  But  the  similar 
right  of  the  State  courts  to  be  the  authentic  interpreters  of  their  own 
respective  systems  of  law  rests  entirely  on  principle.  There  is  not,  and 
in  the  nature  of  the  case  can  hardly  be,  any  written  law  on  the  subject 
binding  the  courts  of  the  Union,  or  of  other  States.  When  we  reflect  on 
all  the  consequences  involved  in,  or  even  on  the  material  interests  affected 
and  the  sums  of  money  transferred  from  party  to  party  by,  such  decisions 
as  those  upon  the  currency,  the  validity  of  municipal  bonds  and  railroad 
taxation,  the  power  to  regulate  freight,  etc.,  every  aid  must  be  welcomed 
in  finding  a  clear  and  constant  rule. 

"The  same  reasons  which  require  that  the  final  decision  upon  all  ques- 
tions of  national  jurisdiction  should  be  left  to  the  national  courts,  will 
also  hold  the  national  courts  bound  to  respect  the  decisions  of  the  State 
courts  upon  all  questions  arising  under  the  State  constitutions  and  laws, 
where  no  question  of  national  authority  is  involved,  and  to  accept  those 
decisions  as  correct,  and  to  follow  them  whenever  the  same  questions 
arise  in  the  national  courts."    Cooley's  Const.  Lim.,  p.  13. 

The  construction  given  to  the  statute  of  a  State  by  the  highest  judicial 
tribunal  of  such  State,  is  regarded  as  a  part  of  the  statute,  and  is  as  bind- 
ing upon  the  courts  of  the  United  States  as  the  text.  Shelby  v.  Guy,  11 
Wheat.  351,  and  other  cases  collected  in  Leffingwell  v.  Warren,  2  Black, 
599,  603. 


APPENDIX.  259 

And  the  principles  of  authentic  interpretation  are  so  closely  followed  by 
this  doctrine,  that  if  the  highest  judicial  tribunal  of  a  State  adopl  new 
views  as  to  the  proper  construction  of  such  a  statute,  and  reverse  its 
former  decisions,  the  United  States  court  will  follow  the  later  adjudica- 
tion instead  of  its  own  prior  holding.  United  States  v.  Morrison,  4  p.-t. 
124;  Green  v.  Neal's  Lessee,  6  Pet.  291. 

Other  examples  of  the  authentic  Interpretation  of  state  courts,  recog- 
nized by  the  Supreme  Court  of  the  United  States,  may  be  found  in  the 
following  cases:  — 

Palmer  v.  Low,  98  U.  S.  1 :  as  to  a  rule  of  private  property,  and  a  State 
statute  of  limitations. 

Orvis  v.Powell,  93  U.  S.  176:  that  the  United  States  Circuit  Court, 
sitting  in  Illinois,  should  follow  the  rule  as  to  marshalling  of  mortgaged 
property  for  sale  laid  down  in  Iglehart  v.  Crane,  42  111.  2G1. 

Slaughter  v.  Glenn,  93  U.  S.  24:  effect  of  a  married  woman's  conveyance 
in  Texas. 

Amy  v.  Dubuque,  98  U.  S.  470:  the  courts  of  the  United  States,  in  the 
absence  of  legislation  by  Congress  upon  the  subject,  recognize  the 
statutes  of  limitations  of  the  several  states,  and  give  the  same  construc- 
tion and  effect  which  are  given  by  the  local  tribunals.  Citing  Lefflngwell 
v.  Warren,  2  Black,  599;  Green  v.  Lessee  of  Neal,  G  Pet.  291;  Harpending 
v.  The  Dutch  Church,  1G  Pet.  455;  Davis  v.  Briggs,  97  U.  S.  G23. 

That  the  United  States  courts  are  not  bound  by  decisions  of  the  state 
courts  upon  questions  of  general  commercial  law  (even  in  cases  arising 
within  the  same  state  where  the  decisions  have  been  made),  is  the  estab- 
lished doctrine  of  the  Supreme  Court;  so  much  so  that,  in  the  last  case 
where  this  doctrine  was  announced  (Oates  v.  First  National  Bank  of  Mont- 
gomery, October  term,  1879,  12  Ch.  Leg.  N.  119),  it  is  said  by  Harlan,  J., 
to  be  needless  to  cite  more  than  the  following  leading  cases  upon  the 
subject:  Swift  v.  Tyson,  10  Pet.  1;  Watson  v.  Tarpley,  18  How.  520; 
Carpenter  U.Providence  Ius.  Co.,  16  Pet.  511. 

"But  questions  of  private  right,  depending  solely  upon  the  common 
law,  and  not  being  questions  of  title  to  property,  will  be  determined  by 
the  Federal  tribunals  on  their  view  of  the  common  law  alone.  Chicago  v. 
Robbins,  2  Black,  418.  And  questions  of  geueral  commercial  law  are  not 
regarded  as  questions  of  local  law,  upon  which  the  decisions  of  the  State 
courts  should  be  of  binding  force."  Swift  v.  Tyson,  1G  Pet.  1;  Cooley's 
Const.  Lira.,  p.  13,  note. 


260  APPENDIX. 

NOTE   F. 

THE   INTERPRETATIO   OF  THE   ROMAN  JURISTS. 

In  the  Roman  law,  the  term  interpretatio  had  a  much  wider  signification, 
and  corresponded  much  more  closely  to  the  construction  of  our  author  than 
to  his  interpretation.  A  very  large  part  of  that  law,  as  we  find  it  in  the 
Pandects  and  other  writings  of  the  Roman  jurists,  was  formed  by  a  gradual 
extension  of  the  provisions  of  the  Twelve  Tables  to  the  new  cases  arising 
from  the  extension  of  the  civic  law  to  new  forms  of  life  and  emergencies 
of  business.  This  was  the  work  of  the  jurisprudentes,  who  strove  by  all 
possible  means  to  make  their  innovations  appear  as  mere  applications  of 
the  venerated  code  which  was  still  regarded  as  the  basis  of  all  civic  law,  — 
the  trunk,  to  use  Puchta's  expression,  from  which  all  new  law  grew,  in  the 
shape  of  branches,  twigs,  and  leaves.  The  following  passage  from  that 
writer's  Institutes  describes  with  great  exactness  the  process  employed,— 
the  interpretatio  duodecim  tabularum  : ' — 

"The  word  interpretatio  expresses  the  entire  influence  of  the  ancient 
lawyers  upon  the  development  of  the  law.  This  word  usually  expresses 
to  our  minds  the  act  of  determining  the  sense  of  any  rule  of  law,  and 
especially  of  a  written  rule,  —  of  ascertaining  the  meaning  of  its  author ; 
and,  consequently,  when  the  term  is  used  with  reference  to  statutes,  of 
ascertaining  the  intention  of  the  legislator.  But  the  interpretatio  of  the 
Roman  jurists  had  no  such  merely  receptive  character.  Its  office  was 
rather  to  supply  the  defects  of  the  written  law  from  the  unwritten;  to 
adapt  the  rules  necessarily  derived,  as  occasion  arose,  from  the  latter,  to 
the  provisions  of  the  former.  As  '  interpreters'  between  the  letter  of  the 
laws  and  the  facts  of  actual  life,  they  had  not  to  adhere  to  the  text  of  the 
iormer,  and  the  original  intention  of  the  law-giver,  but  to  modify  these 
according  to  the  demands  of  their  time  and  the  change  of  circumstances, 
and  thus  to  make  them  applicable.  Such  interpretation  must  be  governed 
by  the  spirit  of  the  law,  not  by  its  letter,  or  by  what  the  legislator  actually 
had  in  view  when  he  framed  that  letter;  it  consisted  rather  in  a  develop- 
ment of  that  spirit,  a  bringing  out  of  the  possible  results,  of  which  only 
the  germs,  so  to  speak,  were  to  be  found  in  the  law  itself." 2 


i  Pompcmius,  L.  2,  §§  5,  6,  33 ;  D.  de  O.  J.,  L,  2. 

2  Puchta,  Cuvsus  der  Institutionen,  Band  I.,  §  78,  s.  315,  316.    So,  Hugo,  in  bis 


ArPENDIX.  261 

Bui  Vangerow  differs  from  Puchta,  in  bringing  even  the  process  above 
described,  of  the  Roman  jurists,  under  the  modern  definition  of  interpre- 
tation,—  using  that  word  in  its  wider  sense,  so  as  to  include  what  Lieber 
terms  construction,  —  by  defining  it  as  the  derivation  of  jural  rules  from  a 
given  law.  Leitfaden,  §  22,  p.  33,  Bd.  I.  This,  of  course,  implies  that 
the  older  limitation  of  the  office  of  interpretation  to  obscure  or  doubt- 
ful laws,  is  incorrect.  As  to  which,  see  Supplementary  Note  C,  ante, 
p.  245. 

The  extent  of  meaning  which  the  Romans  gave  to  the  term  interpn  tatio 
may  be  seen,  not  only  in  their  strictly  judicial  writings,  but  also  in  authors 
who  use  the  term  only  in  what  we  may  accept  as  the  received  usage  of  the 
language,  —  as  in  the  writings  of  Cicero  and  Quintilian.  Thus,  the  latter 
tells  us  that  the  responses  or  opinions  of  the  lawyers  were  entirely  com- 
posed of  two  portions:  one  of  which  was  the  interpretation  of  words;  the 
other  was  the  discrimination  of  right  and  wrong, 

;Vt  qua3  consultorum  responsis  explicantur,  aut  in  verborum  interpret 
tatione  positum  est,  aut  in  recti  pravique  discrimine.  Inst.  Orat.,  Lib. 
XII.,  cap.  3. 

And  the  influence  which  this  broad  acceptation  of  the  word  has  had, 
down  to  the  present  century,  is  nowhere  better  shown  than  in  the  discus- 
sions upon  the  French  Code.  Sec.  5  of  that  Code  stood  as  follows  in  the 
original  draft:  — 

"  The  judges  are  forbidden  to  interpret  the  laws  by  a  general  disposition 
or  rule." 

Maleville  informs  us  that  in  the  discussions  of  the  Conseil  d'Etat  the 
word  inti  rpn  t<  r  was  a  stumbling-block  to  many,  who  denied  to  the  judges 
the  power  of  interpretation  entirely,  claiming  that  it  belonged  to  the  law- 
giver alone,  according  to  C.  ult.,  Cod.  de  Leg.  (I.,  14).  To  this  it  was 
replied,  that  there  were  two  kinds  of  interpretation,  legislative  and  doc- 
trinal; that  only  the  former  was  forb'dden  to  the  judges,  while  the  latter 
wis  an  essential  part  of  their  duty,  which  could  not  be  fulfilled  without 
it,  in  cases  where  the  terms  of  the  law  are  ambiguous.  In  .spite  of  this 
reply,  and  especially  on  the  ground  that  it  might  not  always  be  easy  to 
distinguish  the  two  kinds  of   interpretation,   the  council  determined  to 


Geschichte  derR.  H.,  bis  auf  Justinian,  s.  865,  defines  interpret  alio,  in  this  use  of  the 
term, as"  not  the  explanation  of  obscure  passages, but  ihc  gradual  formation  of  legal 
doctrine." 


262  APPENDIX. 

avoid  the  dangerous  term,  and  substituted  for  the  original  section  that 
which  now  appears  in  the  Code,  viz. :  — 

II  est  defendu  aux  juges  de  pronoucer  par  voie  de  disposition  generate 
et  reglementaire  sur  les  causes  qui  leur  sont  soumises.  Maleville,  Analyse 
Raisonnee  de  la  Discussion  du  Code  Civil  au  Conseil  d'Etat.  Paris.  1807. 
Tom.  I.,  p.  14. 

The  like  influence  of  the  Roman  term  upon  the  notion  of  interpretation 
in  early  English  law  has  already  been  pointed  out  in  Note  B.  It  may 
indeed  be  said  that  the  two  historical  sources  from  which  all  the  contents 
of  that  notion  ^iave  been  drawn  in  all  modern  law,  so  far  as  Europe  and 
America  are  concerned,  are  the  interpretatio  of  the  early  Romaus,  and 
the  "authentic  interpretation"  of  the  Middle  Ages,  derived  to  some 
extent  from  the  later  empire,  of  which  some  account  has  also  been 
given  in  the  preceding  Note  E.  For  this  reason  it  is  desirable  to  know 
what  the  former  realty  was,  —  and  especially  to  get  rid  of  the  erroneous 
impression  conveved  by  some  recent  statements,  that  it  was  peculiarly 
narrow  and  literal.  There  are  some  plausible  arguments  for  this  view, 
but  they  lie  upon  the  surface,  and  are  refuted  by  a  careful  study  of  the 
entire  spirit  and  structure  of  that  law.  Ihering  has  shown  this  admirably 
in  his  brilliant  work  upon  the  "  Spirit  of  the  Roman  Law,"  —  a  work  which, 
paradoxical  and  extravagant  as  some  of  its  views  may  appear,  certainly 
opens  new  paths  in  the  study  not  only  of  Roman  but  of  universal  law, 
and  may  hereafter  be  regarded  as  marking  an  epoch  in  that  study.  A  trans- 
lation of  the  author's  Struggle  for  Law  —  Der  Kampf  urns  Recht  —  has 
lately  appeared  in  this  country,  where  there  has  been  little  disposition  to 
read  foreign  works  upon  law.  It  is  much  to  be  desired  that  it  should 
lead  the  way  to  a  translation  of  the  larger  and  more  important  work. 

The  remainder  of  the  present  note  is  a  condensed  translation  of  Iheving's 
treatment  of  the  subject,  from  Geist  d.  Rom.  Rechts,  Band  II.,  Theil  2, 
pp.  427-455. 

"A  close  adherence  to  the  letter  is  a  mark  of  unripeness  everywhere,  and 
especially  so  in  law.  The  history  of  law  might  write  over  its  first  chapter, 
as  a  motto,  "  In  the  beginning  was  the  word."  To  all  rude  peoples  the 
word  appears  something  mysterious,  whether  it  be  written  or  solemnly 
uttered  as  a  formula,  and  their  simple  faith  fills  it  with  supernatural 
power.  Nowhere  was  this  faith  in  the  word  more  powerful  than  in  ancient 
Rome.  The  cultus  of  the  word  pervades  all  relations  of  public  and  private 
life,  of  religion,  of  morals,  and  of  law.    To  the  ancient  Roman  the  word 


APPENDIX.  263 

is  a  power;  it  binds  and  looses;  it  has  the  power,  if  not  to  remove  moan- 
tains,  at  least  to  remove  crops  into  another  field.1 

With  what  rigid  pedantry,  therefore,  the  letter  was  treated  by  the  ancient 
jurisprudentes,  we  might  infer  from  the  whole  tone  of  national  thought. 
There  was  a  time,  and  a  long  one,  when  the  same  word-catching  of  the 
jurists,  which  afterwards  Eurnished  so  happy  a  theme  for  the  ridicule  of  a 
Cicero,  and  was  gravely  condemned  by  jurists  and  emperors,  passed  in 
the  people's  eyes  as  a  proof  of  acuteness  and  superiority  in  the  lawyer 
who  employed  it;  and  when,  on  the  other  hand,  that  freer  interpretation 
which  the  later  law  employed,  especially  upon  contracts  of  the  jus 
gentium,  would  not  only  have  failed  to  be  understood,  but  would  have 
met  with  the  most  decided  opposition.  It  took  many  centuries  to  bnnur 
the  law  and  the  people  alike  to  the  capacity  for  this  freer  kind  of  inter- 
pretation.2 

The  supremacjr  of  the  letter  in  the  older  law  comes  to  view  in  two 
aspects;  or,  in  other  words,  there  is  a  twofold  restriction  upon  the  will 
in  the  use  of  language:  one  is,  that  to  a  certain  extent  the  choice  ol 
words  is  entirely  forbiddeu,  the  binding  force  of  some  legal  transactions 
being  dependent  on  the  use  of  certain  technical  words  or  traditional 
formulae;  the  other,  while  leaving  to  the  will  the  free  choice  of  the 
language  in  which  its  acts  shall  be  expressed,  demands  the  most  careful 
pains  and  watchfulness  in  their  use,  because  the  principle  of  literal  inter- 
pretation treats  nothing  as  said  or  intended,  except  what  has  been  directly 
and  expressly  uttered.  In  the  former  case,  we  have  a  typical,  abstract 
form;  in  the  latter,  an  individual,  concrete  one;  and  we  might,  therefore, 
name  them  both  formal  limitation-,  and  distinguish  them  as  abstract  and 
concrete,  while  embracing  both  under  the  rubric,  formalism.  But  as  this 
expression  has  already  been  employed  in  a  different  sense,  and  as  there 
seems  to  be  no  need  of  a  common  expression  for  both  cases,  which, 
though  flowing  from  the  same  spring,  are  entirely  independent  of  each 
other,  I  pass  this  by.     Formalism  may  exist  without  literal  interpret a- 


1  The  Twelve  Tables  contained"  provisions  against  magical  incantations  of  the 
kind.  Pliny,  II.  X.,  Lib.  XXVIII.,  2,  4.  The  locus  classicus  upon  the  place  is  Lib. 
XXVI I L,  3-5.  Even  down  to  the  time  of  Apuleius,  these  magical  formulae  played 
a  great  part.    See  Metam.  1,  p.  10;  De  ftfagia  Oratio,  II.,  p.  62. 

-  Gai.  IV.,  §  30,  Nimia  subtUHas  veterum  ;  Constantino,  in  L.  1,  Cod.  de  form.  subl. 
(II. ,53):  Juris  formula  ancupatione  syllabarum  Insidiantes;  Cicero  pro  Cfflcina,  c. 
23:  Ancupia  verborum  et  literarum  tendiculaa;  deOff.L,  c.  10,  pro  Mureua,  c.  11-13, 
de  Orat.  I.,  55:  Pra;ee  actiouum,  cantor  formularum,  aoceps  syllabarum. 


264  APPENDIX. 

tion,  — as,  for  example,  in  a  modern  testament;  and  the  latter  without 
the  former,  — as,  for  example,  in  the  interpretation  of  statutes. 

The  common  source  of  both,  I  think,  is  subjective  adherence  to  the 
external  phenomenon ;  or,  as  it  might  be  expressed  in  an  American  mind, 
the  subjection  of  thought  to  external  facts.  Both  are  characterized  by  the 
preponderance  of  the  external  over  the  internal,  of  the  form  over  the  sense ; 
but  the  mode  of  thought  which  answers  to  this  objective  fact,  and  in  which, 
consequently,  its  history  is  to  be  read,  lies  in  the  direction  of  the  mind  to 
the  external  form,  in  the  tendency  of  thought  toward  visible  and  tangible 
objects.  The  correctness  of  this  view  of  formalism,  as  the  source  of  literal 
interpretation,  will  be  examined  in  the  following  consideration  of  the  con- 
nection between  word  and  thought :  — 

This  relation,  or  the  mode  in  which  thought  is  expressed  in  language, 
may  be  regarded  in  a  double  aspect ;  and  from  this  diversity  spring  the 
two  kinds  of  juristic  interpretation,  commonly,  but  improperly,  known  as 
grammatical  and  logical.  It  sounds  like  a  paradox  to  ask  whether  language 
can  possibly  reproduce  thought;  and  yet  this  question  may  not  only  be 
asked,  but  answered  in  the  negative.  Thought  is  an  internal  process  of 
the  subjective  life,  an  activity,  a  movement;  but  a  movement  cannot  be 
objectified.  Thought,  therefore,  cannot  pass  from  the  subjective  mind 
into  the  external  world,  except  at  the  price  of  losing  its  proper  nature ; 
that  is  to  say,  it  becomes  fixed  or  rigid.  The  spoken  thought  may  be 
called  frozen  thinking. 

I  must  recall  here  the  expression  of  this  thought  by  Schiller  in  his 
•'Votive  Tablets."  "Why  can  the  living  spirit  to  the  spirit  not  appear? 
Because,  if  the  soul  speaks,  it  is  the  soul  no  longer." 

It  is  only  in  an  improper  sense,  then,  that  we  can  speak  of  a  transmission 
or  imparting  of  thought.  The  thought  itself  is  not  imparted.  The  word 
gives  only  the  occasion  and  possibility  of  a  similar  process  of  thought,  —  the 
reproduction  of  a  like  movement  in  the  mind  of  the  hearer,  such  as  there 
was  in  the  mind  of  the  speaker.  To  speak  is  to  produce  motion,  —  a  phys- 
ical one  in  the  air,  a  mental  one  in  the  auditor's  mind.  As  no  word  rides 
upon  the  air-wave  which  strikes  the  hearer's  ear,  but  it  is  only  the  vibra- 
tion of  the  wave  itself  in  which  the  word  consists,  so  no  thought  is 
brought  by  the  word  to  us  as  its  mental  freight,  but  the  word  only  pro- 
duces in  us  a  corresponding  movement  of  our  mind.  The  word  is  not  a 
gift,  but,  physically  and  morally  alike,  an  influence  upon  another  object. 
To  produce  this  influence,  and  the  very  one  which  the  author  intends,  a 


APPENDIX.  205 

glance,  a  gesture,  a  wink,  is  often  as  effectual  as  a  word.  This  proves 
that  the  possibility  of  mental  communication  does  not  depend  upon  the 
objectifying  of  the  thought;  for  what  is  objectified  in  -  ich  signs?  And 
even  when  words  are  used,  how  far  do  they  often  come  short  of  the 
thought,  without  In  the  least  diminishing  the  truth  and  fulness  of  Its 
reproduction  in  the  hearer's  mind!  We  impart  thought  by  an  impulse  to 
similar  thinking;  and  whether  it  be  by  words  or  by  signs,  the  principle  is 
the  same.  The  one  means  may  be  better  than  the  other;  but  they  work 
in  the  same  way,  and  both  give,  not  the  thought  itself,  but  only  the  im- 
pulse and  occasion  to  reconstruct  the  same  thought.  However  exactly  it 
may  be  formulated,  it  is  no  more  the  thought  itself  than  the  truest  picture 
is  the  object  itself. 

In  both  cases,  therefore,  there  does  not  suffice  a  mere  passive  attitude, 
a  mere  readiness  to  receive  what  is  given.  For  what  is  given,  here,  is  not 
that  which  forms  the  object  of  the  gift,  but  is  only  the  means  by  the  right 
use  of  which  the  recipient  may  attain  it.  Action  is  therefore  required 
upon  the  hearer's  side ;  and  here  it  is  that  grammatical  and  logical  inter- 
pretation divide.  The  former  does  not  make  this  active  use  of  what  is 
given.  It  remains  passive  in  the  receipt  of  the  gift;  it  sticks  to  t..c  letter, 
as  language  justly  expresses  it.  It  treats  the  words,  therefore,  as  being 
what  they  never  are,  and  cannot  be :  as  being  the  thought  itself  in  visible 
and  objective  form ;  or,  what  amounts  to  the  same  thing,  as  being  the  only 
permissible  representative  of  it.  On  the  other  hand,  the  logical  interpre- 
tation proceeds  in  conformity  with  the  real  nature  of  the  process  by  which 
thought  is  imparted,  and  goes  beyond  the  words;  or,  to  use  another  very 
expressive  mode  of  speech,  it  reads  between  the  lines,  —  that  is,  it  places 
itself  in  the  mind  of  the  speaker,  and  looks  for  his  thought,  as  it  were, 
at  home.  The  scene  of  its  activity  is  there,  while  that  of  the  other  is  in 
the  bare  words.  All  that  does  not  lie  in  the  words  themselves,  but  beyond 
them,  in  the  speaker's  mind,  has  no  existence  for  the  latter,  because  it 
has  never  been  incorporated  in  language.  It  holds,  as  we  say,  to  the  dead 
word,  —  dead  because  reproducing,  not  the  living  thought,  but  only  a  mask 
or  copy  thereof.  Its  aim,  therefore,  must  be  to  give  the  objective  meaning 
the  sense  which  the  words  have  as  measured  by  the  usages  of  speech. 
Whether  this  corresponds  to  the  speaker's  real  meaning,  is  a  matter  of  in- 
difference to  it,  and  must  be  so  for  consistency's  sake.  This  is  its  con- 
demnation. 

The  two  methods  may  then  be  designated,  the   one  as  objective  and 


266  APPENDIX. 

absolute,  the  other  as  subjective  and  individual.  The  latter  connects  the 
language  with  its  author,  derives  aid  from  all  surrounding  circumstances, 
determines  what  he  in  this  particular  case  meant  to  say,  and  thus  derives 
the  force  and  meaning  of  the  language,  not  from  the  words  themselves, 
but  from  other  sources.  Its  whole  task  may  be  comprehended  in  one 
expression,  — to  reproduce  the  situation  in  which  the  word  was  spoken  or 
the  sign  made.  In  this  situation  —  that  is,  in  the  relations  of  the  persons 
to  each  other,  in  the  purpose  which  brought  them  together,  in  the  time 
and  place  of  the  meeting,  etc.  — lies  the  key,  the  commentary,  of  the  ex- 
ternal sign,  and  this  determines  the  choice  of  means  necessary  to  its  com- 
prehension. In  one  situation  a  word  may  mean  more  than  a  hundred  in 
another.  Hence  in  this  sort  of  interpretation  the  same  word  or  sentence 
may,  in  different  situations,  have  entirely  different  senses.  In  the  other 
mode  this  is  impossible.  Treating  the  word  as  something  independent, 
unaffected  by  the  character  of  the  speaker  and  the  surrounding  circum- 
stances, definable  only  from  and  through  itself,  it  must  always  attribute 
the  same  meaning  to  the  same  word  or  sentence,  no  matter  by  whom,  or 
under  what  circumstances,  it  is  employed. 

According  to  this,  there  can  be  no  doubt  of  the  respective  value  of  the 
two  methods.  Logical  interpretation  alone  accords  with  the  true  nature 
of  mental  communication.  The  function  and  value  which  it  gives  to  the 
word  are  simply  the  true  one.  If  the  assumption  with  which  grammatical 
interpretation  starts  — to  wit,  that  thought  could  be  reproduced,  as  such  — 
were  founded  in  truth,  then  this  would  clearly  deserve  the  preference; 
for,  to  say  nothing  of  the  less  demand  made  by  it  on  the  interpreter,  it 
has  the  advantage  of  an  immediate  result,  and  thus  of  greater  safety.  It 
makes  no  demand  for  research  and  reasoning,  as  logical  interpretation 
does,  but  it  relies  confidently  on  what  lies  directly  before  it  and  is  plainly 
to  be  seen.  But  all  its  apparent  advantage  in  certainty  disappears  when 
we  find  it  to  be  often  in  the  highest  degree  treacherous,  untrustworthy, 
untrue,  the  word  either  too  broad  or  too  narrow  for  the  thought,  the 
certainty  leading  as  often  to  error  as  to  truth. 

What  we  have  said  explains  why  grammatical  interpretation  has  in  his- 
tory always  preceded  logical.  Strange  as  it  may  seem,  that  language  was 
always  most  strictly  interpreted  in  those  periods  when  men  had  least  com- 
mand of  it,  and  consequently  were  least  qualified  to  assure  themselves  of 
that  correspondence  between  the  word  and  thought,  which  is  the  basis  of 
grammatical  interpretation,  still  this  reverence  for  the  word  harmonizes  in 


APPENDIX.  267 

other  respects  with  the  character  of  Midi  periods.  Faith  in  external 
phenomena  comes  first,  —  is  natural.  Skepticism  and  emancipation  from 
outward  appearances  come  after.  The  word  is  apprehensible,  imme- 
diate,—  the  meaning  is  invisible  and  mediate;  and  in  language,  as  in  all 
things,  prehension  precedes  comprehension.  Emancipation  from  the 
word,  therefore,  can  only  be  looked  for  when  the  mind  has  attained  the 
requisite  strength  to  operate  securely  without  it;  but  the  Roman  mind  at 
the  period  of  the  older  law  had  not  yet  attained  this  height.  The  law 
stood  substantially  in  the  stage  of  verbal  interpretation. 

When  a  mi-take  is  made  in  the  language  of  a  contract,  or  any  like  in- 
strument, the  loss  usually  falls  upon  a  single  person  and  is  temporary  in 
its  character,  and  in  most  instances  that  person  Is  himself  to  blame  for  it; 
but  when  a  legislator  makes  a  mistake,  it  may  harm  not  only  an  unlimited 
number  of  innocent  parties,  but  thj  evil  lasts  as  long  as  the  law  remains 
in  force.  It  was  probably  for  this  reason,  that  the  ancient  jurisprudence 
remitted,  in  respect  to  statutes,  something  of  the  rigor  with  which  it 
interpreted  private  instruments,  although  upon  principle  both  are  to  be 
construed  alike.  The  letter  indeed  plays  a  great  part  here,  but  its  author- 
ity yields  when  it  comes  in  conflict  with  the  imperative  needs  of  actual 
life.  The  examples  of  early  interpretation  that  remain  to  us  seem  to 
deny  this,  and  to  bear  the  marks  of  unflinching  adherence  to  the  letter. 
Take,  for  example,  the  well-known  passage  of  the  Twelve  Tables  in  regard 
to  intestate  succession.  From  almost  every  word  of  this  passage  has 
been  developed  an  important  rule  of  law,  a  rule  of  which  the  legislator 
himself  had  no  thought,  and  which  therefore  finds  its  authority,  not  in  his 
will,  but  in  the  letter  alone.  Take,  first,  the  word  intcstato.  From  this  it 
was  inferred,  that  if  one  only  of  several  devisees  entered  upon  the  inherit- 
ance under  the  will,  the  unclaimed  portions  did  not,  as  might  have  been 
expected,  lapse  to  the  heirs,  for  by  the  statute  these  were  to  inherit  only 
on  condition  that  the  ancestor  died  intestate ;  but  he  could  not  be  said  to 
die  intestate,  under  whose  will  a  single  devisee  claimed.  Next,  the  word 
moritur.  Upon  this  was  based  the  requirement,  that  he  who  would  take  as 
heir  must  have  existed  at  the  moment  of  the  ancestor's  death,  were  it  only 
in  the  womb.  Again,  agnatus  proximus.  By  the  latter  words  the  succes- 
sion of  degrees  Avas  held  excluded,  as  by  the  following,  si  agnatus  nee 
escit,  the  succession  of  orders  was  excluded.  Both  phrases  were  taken  in 
an  absolute  sense ;  that  is,  if  a  nearer  agnate  existed  at  the  moment  of  the 
ancestor's  death,  all  more  remote  agnates  were  excluded  by  him,   even 


2(i8  APPENDIX. 

though  he  died  or  refused  the  inheritauce  before  entering  upon  it.  The 
more  remote  were  excluded,  because  at  the  moment  of  the  ancestor's  death 
they  were  not  the  proximi  of  whom  the  statute  spoke.  In  like  manner, 
the  gentiles  were  not  admitted  in  this  case,  because  the  statute  provided 
for  their  admission  only  si  agnatus  nee  escit,  and  the  agnate  existed,  even 
though  he  subsequently  died  or  disclaimed.  This,  indeed,  was  a  master- 
piece of  literal  interpretation ;  for,  on  a  candid  view,  it  is  evident  that  the 
more  remote  heir  is  not  absolutely  excluded  in  such  cases,  but  only  for 
the  benefit  of  the  nearer  one,  and  that  consequently  when  the  latter  after- 
ward disappears  there  is  no  reason  why  the  more  remote  should  not  come 
in,  since  he  has  then  become  the  nearer  heir.  If  the  same  expressions 
were  found  in  a  modern  statute,  they  could  be  interpreted  relatively,  hold- 
ing him  to  be  the  next  agnate  who  is  excluded  by  none  nearer,  and  the 
gentiles  to  be  admissible  whenever  no  agnate  existed ;  that  is,  whenever 
none  of  them  either  could  or  would  claim  the  inheritance. 

The  Lex  Atilia  ordered  that  whenever  infants  or  unmarried  women  were 
without  a  tutor,  they  should  be  provided  with  a  guardian  by  the  authori- 
ties. No  provision  was  made  for  the  case  when  there  was  a  tutor,  but 
being  insane  or  dumb,  he  was  incapable  of  discharging  his  trust.  In  such 
a  case,  our  modern  lawyers  would  argue  from  the  purpose  of  guardianship, 
as  follows :  It  is  the  same  when  a  guardian  is  entirely  incapable,  as  when 
there  is  none  at  all;  and  the  purpose  of  the  statute  being  to  supply  the 
want  of  a  guardian,  it  must  apply  alike  in  either  case.  The  old  law,  on 
the  other  hand,  adhered  to  the  very  language  of  the  statute,  Malieribus 
pupilisve  non  habentibus  tutores.1  A  person,  it  was  said,  whose  guardian 
was  insane,  or  otherwise  incapable,  certainly  has  a  guardian,  and  there- 
fore the  case  provided  for  by  the  statute  does  not  arise.  It  required 
several  decrees  of  the  Senate  to  get  rid  of  all  the  results  of  this  doctrine. 
Dig.,  XXVI.,  1, 17. 

So,  in  the  famous  passage  of  the  Twelve  Tables,  Si  pater  filium  venum 
duit  filius  a  patre  liber  esto,  the  older  jurists  limited  its  effect  strictly  to 
sons;  while  a  later  age  would  certainly  have  included  daughters  and 
grandchildren,  according  to  the  maxim,  Filii  appellatione  omnes  liberos 
intelligimus.2 


'  Ulp..  XI.,  18.    In  Gaius,  I.,  1S5,  and  Inst.  I.,  20  pr.,  the  language  is,  Si  ad  nullus 
omnino  tutor  sit. 

2  Dig.  de  V.  S.,  L.  16, 84. 


APPENDIX.  269 

Although  from  these  examples  it  might  be  inferred  that  the  older  jurists 
gave  a  strict  literal  interpretation  to  the  laws,  such  an  inference  would  be 
incorrect.  It  has  never  been  formally  made,  though  we  find  some  of  our 
best  writers  assume  it.  Some  instances  of  a  more  liberal  interpretation 
will  show  their  mistake. 

The  Twelve  Tables  fix  the  period  of  usucapion  at  two  years  for  a  piece 
of  land,  and  one  for  other  things  (ceterceres).  What  was  the  rule  for  a 
house?  A  strict  literal  interpretation  would  evidently  place  it  among  the 
other  things,  as  Cicero  happens  to  remark  (Topica,  Cap.  IV.)  ;  but  inter- 
pretation placed  it  justly  under  the  same  rule  with  the  fwidus.1 

The  right  of  the  land-owner  to  gather  fruits,  etc.,  which  had  fallen  upon 
his  neighbor's  lands,  was  derived  from  the  Twelve  Tables,  where  it  was 
expressed  in  terms  too  narrow  in  some  respects,  and  too  wide  in  others, 
for  it  spoke  only  of  glands,  —  that  is  to  say,  acorns,  or  fruit  resembling 
acorns,  such  as^hestnuts,  —  while  it  set  no  limit  to  the  enjoyment  of  the 
right.  By  a  literal  interpretation,  no  fruits  but  acorns,  and  the  like,  could 
be  thus  gathered;  but  the  gatherer  might  enter  his  neighbor's  land  at  all 
hours  and  seasons  — for  instance,  even  by  night  —  to  gather  them.  A  freer 
interpretation  by  the  jurists  extended  the  right  to  all  its  proper  objects; 
while  the  praetor,  employing  the  same  power  of  construction,  imposed 
reasonable  limits  upon  its  exercise.2 

The  law  ordained  that  the  slave,  whose  master  had  bequeathed  him  his 
person  on  the  payment  of  a  given  sum,  might  pay  this  not  only  to  the 
heir,  but  to  any  one  who  had  purchased  from  him.  By  interpretation,  the 
term  "purchaser"  was  extended  to  mean  any  one  who  had  acquired  the 
ownership  of  the  slave.  In  like  manner,  the  expression  patronus  was 
extended  to  the  children  of  the  patron.3 


1  This  example  illustrates  very  well  the  difficulty  of  distinguishing  the  province 
of  interpretation  proper  from  other  parts  of  the  law.    In  deciding  that  a  boose  was 

subject  to  the  same  rule  of  usucapion  with  the  land  on  which  it  ~t i,  the  jurists  did 

not  so  much  interpret  the  language  of  the  law, as  decide  upon  the  nature  of  the  object 
to  which  the  law  applied.  No  modern  lawyer  would  think  of  placing  a  discussion  of 
the  question  of  fixtures  under  the  rubric  of  an  interpretation  of  the  word  land  ;  and 
yet,  in  a  very  large  number  of  cases,  it  is  almost  impossible  to  decide  whether  we 
have  to  determine  the  exact  meaning  of  the  words  in  which  the  law  is  framed,  or  the 
nature  of  the  thing- which  constitute  the  objects  of  the  law;  in  other  words,  the 
boundary  between  interpretation  and  application  of  the  law  is  very  hard  to  draw. 
It  may  even  be  questioned  whether,  at  the  present  day,  any  .-tich  boundary  can  be 
drawn.     It  is  certain  that  we  have  no  generally  recognized  test  of  the  distinction. 

:  Dig.  de  glande  legunda,  XI.III.,  28,  pr.  lex.  1. 

s  Frag.  Vat.,  ,-ec.  30S;  Coll.,  XVI.,  8,  sec.  2. 


270  APPENDIX. 

The  words  of  the  Twelve  Tables  upon  which  the  action  aquae  pluvice 
arcendce  was  based  were,  Si  aqua  pluvia  nocet.  It  was  held  that  the  action 
lay,  whether  the  harm  had  actually  been  done  or  was  only  threatened,  as 
if  the  words  were  nocere  potent.1 

If  the  law  as  to  successions  were  strictly  interpreted,  the  female  sex 
would  be  excluded  by  the  masculine  form  of  suus,  etc. ;  and  even  the  right 
of  the  masculine  sui  might  have  been  disputed,  on  the  ground  that  the  law 
did  not  expressly  give  it,  but  only  took  it  for  granted.  So,  from  the  words, 
Si  intestato  moritur,  it  might  be  inferred  that  the  legal  heirs  were  excluded 
whenever  a  testament  was  actually  left,  though  the  heirs  named  in  it 
refused  to  take. 

Upon  testamentary  inheritance,  the  Twelve  Tables  contain  only  the  well- 
known  clause,  Uti  legassit  super  pecunia  tutelave  suoerei,  ita  jus  esto.  If  this 
were  taken  in  its  full  extent,  there  could  have  been  no  question  of  capitis 
deminutio  of  the  testator,  no  requirement  of  capacity  in  the  heirs.  These 
and  other  limitations  were  introduced  into  the  letter  by  interpretation. 

These  examples  prove  abundantly  that  the  ancient  jurisprudents  never 
adhered  blindly  to  the  letter,  but  constantly  kept  in  view  the  reason  of  the 
case,  and  the  needs  of  practical  life,  and  knew  how  to  interpret  statutes  in 
conformity  with  these.  With  all  their  reverence  for  the  letter,  the  Eomans 
had  too  sound  sense  to  sacrifice  to  it  their  own  convictions  and  practical 
interests,  whenever  the  legislator  had  failed  in  expression.  We  may  there- 
fore assume  that  in  the  cases  already  mentioned,  where  the  letter  prevailed, 
the  result  was  really  intended,  and  the  letter  only  used  as  a  pretext  there- 
for. For  example,  if  testamentary  and  intestate  succession  had  been  held 
consistent  with  each  other,  there  would  have  been  no  difficulty  in  recon- 
ciling therewith  the  si  intestato  moritur.  The  word  intestatus  was  freely 
translated  in  other  connections  already  mentioned.  The  inference  from 
the  word  moritur,  that  the  heir  must  be  living  at  the  instant  of  the  ances- 
tor's death,  was  only  a  pretext.  The  word  could  have  been  referred,  not 
to  the  moment  of  the  testator's  death,  but  to  that  when  the  intestate 
succession  opened,  to  meet  the  case  of  a  disclaimer  by  the  testamentary 
heirs.    The  exclusion  of  the  successio  graduum  and  ordinum,  by  the  above 


*  Dig.,  XL.,  7,  21,  pr.  It  is  no  doubt  in  imitation  of  this  holding  that,  in  a  familiar 
case,  it  has  been  held  in  our  law  that  an  action  would  lie  for  damage  by  eaves -drip, 
even  though  the  defendant  could  show  that  not  a  single  drop  of  rain  had  fallen  from 
the  time  of  the  erection  complained  of  to  the  commencement  of  the  suit.  Fay  v. 
Prentis,  1  C.  B.  828. 


APPENDIX.  271 

cited  words  of  the  Twelve  Tables,  seems  to  have  been  prompted  by  a  dis- 
position to  secure  the  benefits  of  the  succession  to  the  blood-relations 
(cognati)  who  were  not  mentioned  at  all  in  the  law.  At  a  later  period, 
this  disposition  comes  forth  in  the  clearest  manner,  and  forms  one  of  the 
leading  objects  of  the  praetorian  bonorum  possessio. 

To  understand  the  singular  interpretation  of  the  Lex  Atilia,  we  must 
remember  that  the  Roman  guardianship  differed  very  widely  from  the 
modern.  The  latter  exists  entirely  for  the  protection  and  interest  of  the 
ward;  the  former  was  also  a  right  of  the  guardian.  The  patria  potestas, 
no  less  than  the  tutela,  was  designed  for  the  education  and  care  of  the 
persons  subject  to  it;  and  if  that,  as  being  a  right,  was  not  lost  by  insanity, 
or  other  incapacity  of  the  father  to  fulfil  its  duties ;  and  if,  in  like  case, 
the  manns  of  the  husband  over  his  wife  remained,  so  also  must  the  rule 
be  for  guardianship ;  and  we  therefore  are  not  obliged  to  attribute  the 
rule  above  mentioned  to  a  mere  excess  of  literal  interpretation.  Neither 
is  this  proved  by  its  later  revocation,  since  the  change  was  in  harmony 
with  an  altered  conception  of  a  guardian's  duties. 

The  law  respecting  the  sale  of  a  son,  like  that  which  excluded  the  suc- 
cessio  graduum,  was  literally  interpreted  for  the  purpose  of  keeping  it 
within  the  narrowest  possible  limits.  The  interpretation  was,  as  we  may 
say,  one  of  tendency.  That  the  father's  right  to  sell  the  son  was  already 
disapproved  by  public  opinion  at  the  period  of  the  Twelve  Tables  is  shown 
by  its  limitation  to  three  times.  It  was  the  same  opinion  that  limited  its 
exercise  to  sons,  and  emancipated  daughters  and  grandchildren  by  a  single 
sale.  This  is  the  clearest  proof  of  the  tendency.  If  it  had  been  in  the 
other  direction,  the  interpretation  would  not  have  been  that  they  were 
free  by  a  single  sale,  but  that,  in  respect  to  them,  the  father's  power  of 
sale  had  no  limits. 

Thus,  it  appears  that  the  relation  of  the  older  jurisprudents  to  the  stat- 
ute was  by  no  means  a  complete  subjection  to  the  letter,  such  as  literal 
interpretation  would  have  required,  but  may  even  be  said  to  have  been 
freer  than  we  sometimes  find  it  to-day;  for,  under  the  guise  of  interpre- 
tation, they  often  practised  the  construction  of  law,  and  twisted  and 
turned  it  to  the  shape  in  which  they  wished  to  have  it.  That  many  of 
their  interpretations  were  consistent  neither  with  the  words  nor  with  the 
sense  of  the  law,  and  that  at  times  they  even  played  upon  the  words,  is  too 
plain  to  be  denied.  The  acceptance  or  rejection  of  an  Interpretation  was 
determined,  not  by  its  correctness,  either  according  to  the  letter,  or  accord- 


272  APPENDIX. 

ing  to  the  intent,  but  by  its  practical  utility.  Or  were  the  ancient  jurists 
indeed  so  blind,  that  they  could  not  see  on  what  weak  foundations  many 
of  their  interpretations  rested?  They  would  not  see;  they  tacitly  agreed 
not  to  look  at  the  grounds,  where  they  saw  the  rule  was  necessary.  Prac- 
tical needs,  considerations  of  jurisprudence,  and  others  like  these,  entirely 
foreign  to  pure  interpretation,  —  a  conviction  of  the  real  value  of  the  view 
they  were  to  take,  —  influenced  their  judgment  and  quieted  their  con- 
science, however  weak  might  be  the  external  grounds.  When  it  became 
a  matter  of  policy  to  favor  the  retention  of  property  iu  the  male  line, 
and  probably  even  before  the  lex  Voconia  gave  the  example  of  abridging 
the  right  of  females  to  succeed,  the  jurists  discovered  —  subtilitate  qua- 
darn  excogitata,  as  Justinian  expresses  it  —  that  the  Twelve  Tables  had 
limited  the  right  of  women  to  inherit  ab  intestato  to  agnatic  sisters.  With 
what  face  could  a  jurist  have  said  this,  if  he  did  not  feel  that  his  business 
was  not  so  much  to  interpret  the  law  as  to  modify  it  according  to  the 
interests  and  needs  of  the  time?  As  these  needs  changed,  so  changed  the 
interpretation.  At  one  time,  a  usucapio  of  inheritance  was  necessary,  and 
it  existed;  at  another,  it  became  needless,  and  disappeared;  or,  as  Gaius 
says,  it  came  to  be  held  impossible.  In  short,  the  elder  interpretation  was 
essentially  one  of  tendency. 

But  I  regard  it  as  rather  a  credit  than  a  reproach  to  the  older  law  that, 
'instead  of  blindly  following  the  letter,  it  sought  to  adapt  this  to  the  wants 
of  life  and  the  claims  of  the  times.  In  this  respect,  it  paved  the  way  for 
the  praetor's  work.  Both  were  active  in  the  formation  of  law,  not  seldom 
at  the  cost  of  the  letter,  which,  according  to  the  narrow  modern  concep- 
tion, it  would  have  been  their  task  merely  to  apply,  or  to  provide  the  means 
of  its  application.  But  it  was  exactly  this  work  that  enabled  them  to 
judge  of  the  actual  value  of  positive  law,  its  defects,  its  want  of  adaptation 
to  the  needs  of  the  time,  or  its  practical  utility;  and  so  long  as  sound 
sense  and  feeling  remain  in  the  persons  charged  with  the  administration 
of  law,  they  will  be  the  first  to  perceive  such  defects  as  these.  Theory 
may  condemn  this  ever  so  severely,  and  may  impress  ever  so  sharply  upon 
the  judge's  mind,  that  his  duty  does  not  permit  him  to  be  influenced  by  his 
opinion  of  the  merits  or  demerits  of  the  law;  this  will  not  change  the 
fact.  No  statute  ever  resisted,  in  the  end,  the  unfavorable  opinion  of  the 
profession.  Whether  he  intend  it  or  not,  the  judge's  hand  grows  weak, 
the  arm  of  justice  loses  its  power,  acute  interpretation  lends  all  its  means 
to  evade  and  to  undermine  such  a  statute,  to  introduce  conditions  not 


APPENDIX.  273 

found  in  the  text,  to  extend  or  to  contract  its  language,  and,  as  it  were, 
by  a  silent  conspiracy,  to  invent  and  recommend  the  m  »s1  forced  con- 
structions, till  even  the  rules  of  logic  bend  to  the  claims  of  interest.  This 
silent  war  of  the  profession  against  the  positive  law  is  repeated  wherever 
that  law  becomes  out  of  date  without  being  formally  repealed.  It  is  in 
this  manner  that  our  instincts  of  right  naturally  react  against  the  legisla- 
tor's disregard  of  them.  A  recent  example  is  furnished  by  the  history  of 
capital  punishment.  As  the  changed  sentiment  and  opinion  revolted 
against  the  severity  of  the  earlier  law,  its  interpreters  became  more  in- 
genious in  overcoming  this  severity,  until  one  of  them  could  even  boast 
that  he  had  not  left  a  single  letter  of  the  statute  standing.  When  such 
interpretations  as  we  have  mentioned  above,  and  have  called  interpreta- 
tions of  tendency,  are  regarded  apart  from  the  motives  that  led  to  them, 
they  seem  so  plainly  untrue,  so  entirely  untenable,  that  we  wonder  how 
they  could  ever  have  been  accepted,  or  even  seriously  proposed. 

But  when  the  ancient  interpretation  is  regarded  from  the  right  point  of 
view,  we  see  that  what  it  produced  was  in  substance  fully  justifiable, 
-and  even  necessary,  and  that  it  would  be  altogether  unjust  to  take  in 
earnest  Cicero's  reproach  against  the  older  jurists,  of  having  corrupted 
the  law.1 

The  impulse  to  this  alleged  corruption  proceeded  not  from  them,  but 
from  the  people ;  and  if  they  had  attempted  to  withstand  it,  it  would  have 
made  its  way  by  some  other  channel.  Their  artifices  simply  saved  the 
necessity  of  legislation,  which  was  employed  only  when  the  jurists  found 
themselves  unable  to  meet  the  need.  Their  interpretation  deserves  the 
name  which  the  proctors  acquired  in  a  subsequent  period,  of  viva  vox  juris 
cirilix,  —  a  living  organ  of  the  law,  not  a  mere  trumpet  through  which  it 
was  uttered.  Though  professing  to  be  merely  explanations,  their  inter- 
pretations,  in  fact,  were  a  change  ami  development  of  the  law  in  accordance 
with  the  spirit  of  the  time ;  and  so  they  were  regarded,  at  least  later,  when 
the  old  jurists  were  called  veteres  qui  tunc  jura  condiderunt,  and  their  work 
recognized  as  a  distinct  part  of  the  law,  —  jus  civile  in  the  narrower  sense, 
oompositum  a  prude ntibus.3 

While  fully  recognizing  that  element  of  their  work  by  which  substantive 


i  Pro  Murena,  c.  12.  He  himself  boasted  afterward  that  this  was  said  merely  to 
influence  the  mob,  —  apud  imperitoa  dicta,  — ox;  as  an  English  sergeant  would  have 
expressed  it,  to  tickle  the  lay  gents. 

s  tiai.,  IV.,  30;  Dig.  de  O.  J.,  I.,  2,  2,  5. 

18 


274  APPENDIX. 

law  was  produced,  we  must  at  the  same  time  notice  as  an  essential  feature 
of  it  (as  the  Romans  themselves  did),  the  mode  in  which  it  was  formally 
connected  with  the  older  law.  It  seems  as  if  jurisprudence  did  not  then 
venture  openly  to  display  that  creative  energy  which  it  always  possesses 
in  fact,  and  never  employed  more  fully  than  in  Rome  itself,  but  was  con- 
stantly striving  to  conceal  it  under  a  veil  of  positive  law.  If  we  could 
look  more  closely  into  their  processes  of  development,  we  should  doubtless 
find  many  more  of  the  threads  with  which  their  doctrines  were  connected, 
however  loosely,  with  the  external  letter. 

I  have  left  to  the  last  one  question  which  might  properly  have  found 
place  before,  but  could  hardly  be  answered  satisfactorily  then.  How  did 
the  ancient  jurisprudence  regard  evasions  of  the  law?  In  consistency  with 
the  principles  of  literal  interpretation,  it  could  hardly  avoid  tolerating 
them,  either  in  respect  to  statutes  or  contracts ;  for  the  evasion  of  a  statute 
implies  no  offence  against  the  letter,  but  only  against  the  intent,  — that  is, 
against  an  element  which  literal  interpretation  disregards  altogether.  We 
have  but  very  little  material  for  a  direct  answer  to  the  question.  We 
find,  indeed,  cases  of  evasion  at  a  very  early  time, — as,  of  the  laws 
against  usury  and  those  in  regard  to  appeal.1  But  attempts  at  evasion 
occur  in  all  ages.  The  only  significant  point  is  the  mode  in  which  they 
are  regarded  and  treated  by  the  law.  As  to  that,  these  cases  afford  no 
definite  information.  We  can  only  infer  that  the  attempts  were  successful, 
and  that  the  law  did  not  avoid  them  entirely,  as  at  a  later  day.  In  one 
case  only,  I  think,  we  have  clear  and  precise  information,  —  differing,  too, 
from  what  we  might  expect.  Licinius  Stolo,  known  as  the  author  of  the 
rogations  which  bore  his  name,  had  evaded  his  own  land-law  by  emanci- 
pating his  son,  and  conveying  to  him  so  much  of  his  land  as  exceeded  the 
amount  allowed  by  statute.  Livy  tells  us  that  he  was  convicted,  under  his 
own  law,  of  committing  a  fraud  upon  it  by  the  emancipation  of  his  son.2 

The  testimony  of  the  fact  cannot  be  impeached,  but  we  should  not  infer 
from  this  that  such  frauds  upon  the  law  were  generally  punished ;  for  it 
was  the  people  that  condemned  Licinins,  and  from  Avhat  we  know  of  the 
mode  in  which  they  exercised  their  criminal  jurisdiction,  we  cannot  reason 
with  much  confidence  as  to  what  an  ordinary  judge  would  have  done.  At 
any  rate,  we  must  consider,  on  the  other  side  of  the  question,  that  of  the 


i  Tacitus,  An.  VI.,  16;  Liv.,  II.,  31;  XXXV.,  7;  X.,  9. 

2  Quod  eniancipaiido  filium  fraudem  legi  fecisset.    Liv.,  VII.,  16. 


APPENDIX.  275 

fictions  of  the  older  law  not  .1  few  involved  an  evasion  of  the  statutes,  and 
that  even  the  legislation  often  availed  itself  of  an  evasion  to  get  rid  of 
an  earlier  statute  which  it  was  unwilling  directly  to  repeal.  (The  chief 
example  of  this  is  the  Lex,  Furia,  in  regard  to  the  amount  of  legacies.) 
Neither  of  these  would  have  been  possible,  had  the  e\  asion  of  the  law  been 
regarded  as  it  was  by  the  later  Roman  jurists,  or  as  it  is  in  our  own  day. 
Probably  in  this  case,  as  in  other-,  the  evasion  of  the  law  by  a  literal 
interpretation  was  considered  justifiable;  but  a  device  could  always  1"- 
found,  to  exclude  it  from  cases  where  it  would  be  inconsistent  with  higher 
considerations. 


NOTE    G. 

ON   ANALOGY  AND   THE   RATIO   LEGIS. 

The  term  analogy  has  been  in  use  in  this  connection  from  the  very  begin- 
ning of  the  discussion,  as  will  be  seen  by  the  quotations  from  Azo  in  Note 
B.  It  is  mentioned  by  him  as  the  last  resort,  when  all  other  means  of 
interpretation  fail.  Its  employment  to  desiguate  a  distinct  process  of 
interpretation  is  of  much  later  date,  and  has  perhaps  sprung  from  a  hasty 
reading  of  Paley's  very  famous  account  of  the  process  of  legal  reasoning, 
as  a  comparison  of  conflicting  analogies.  See  Paley,  Moral  and  Political 
Philosophy,  Book  VI.,  chap.  8. 

The  distinction  made  by  Dr.  Lieber,  in  the  note  on  p.  4G,  ante,  is  based 
rather  on  the  earlier  view  than  the  later.  To  warn  us  against  an  analogy 
drawn  from  "  comparison  of  totally  different  things,"  while  approving  one 
of  "subjects  belonging  to  the  same  sphere,"  certainly  implies  that  the 
merit  or  demerit  of  an  analogy  lies  in  the  selection  of  the  objects  taken  as 
analogies,  and  not  in  the  conduct  of  the  process.  The  treatment  of  the 
subject  by  Austin,  on  the  other  hand  (Lectures  on  Jurisprudence,  II., 
103G-1055),  is  an  attempt  to  reduce  the  analogy  to  a  distinct  kind  of  inter- 
pretation, or  of  reasoning  in  general.  "  In  any  of  the  meanings  which  we 
shall  review  below,  the  term  analogy  denotes  an  intellectual  process,  —  a 
process  which  is  caused  or  grounded  by  or  upon  an  analogy.  (1.)  Analogy 
denotes  the  analogizing  of  several  analogous  objects;  that  is  to  say,  the 
considering  the  several  objects  as  conuected  by  the  analogy  between  them. 
(2.)  Analogy  denotes  an  inference,  or  a  reasoning  or  argumentation,  where- 


276  APPENDIX. 

of  an  analogy  of  objects  is  mainly  the  cause  or  ground."  Austin,  p.  1040. 
And  in  another  place  Austin  divides  analogy  in  a  manner  that  would  be 
absurd  if  it  were  not  a  distinct  process,  independent  of  the  subject-matter 
or  analogies  reasoned  from ;  since  he  distinguishes  analogical  reasoning 
concerning  contingent  matter  from  analogical  reasoning  concerning  neces- 
sary matter.  He  does,  indeed,  "believe  that  the  latter  is  not  commonly 
called  analogical  reasoning,  and  it  certainly  differs  essentially  from  ana- 
logical reasoning  concerning  contingent  matter."  Ibid.  1043.  Without 
following  his  distinctions  all  through,  I  may  be  allowed  to  state  as  a  con- 
clusion, that  analogical  reasoning  must  always  be  contingent,  never  neces- 
sary, and  that  it  differs  from  other  reasoning  only  in  the  value  of  its 
premises,  and  not  in  that  of  its  processes. 

In  reasoning  from  analogy,  a  conclusion  is  drawn  from  one  instance  to 
another,  or  from  one  species  to  another,  it  being  assumed  that  in  one  of 
these  cases  we  shall  find  the  same  generic  rule  that  governs  the  other. 
The  analogy  is  false  if  the  instances  or  species  are  not  of  the  same  kind, 
or  if,  being  of  the  same  kind,  the  rule  that  is  borrowed  from  one  and 
applied  to  the  other  is  not  really  the  common  ride  or  principle  that  governs 
both,  but  is  peculiar  to  the  former,  constituting  its  specific  difference 
instead  of  the  common  genus.  For  in  that  case  we  have  not  found  a  prin- 
ciple of  union,  but  one  of  division.  If  analogy  is  regarded  in  its  original 
meaning  as  proportion,  as  comparison  of  two  qualitative  relations,  the 
above  may  be  expressed  by  saying  that  the  conclusion  is  sound  only  when 
both  relations  have  the  same  exponent,  —  that  is,  wheu  the  two  legal  rela- 
tions are  of  the  same  nature.  Since  analogy,  as  such,  always  proceeds 
from  instauce  to  instance,  not  connected  by  a  clear  and  conclusive  major 
premise,  or,  in  other  words,  since  analogy,  while  only  analogy,  assumes 
rather  than  finds  the  same  exponent  for  both  cases,  it  is  inconclusive,  and 
easily  runs  into  vague  fallacies,  especially  when,  in  the  construction  of  a 
statute,  a  case  brought  under  the  law  by  one  analogy  is  employed  to  bring 
in  still  another  by  a  new  analogy.  Therefore,  an  argument  from  analogy 
should  always  be  carefully  tested  or  sustained  by  other  methods.  An 
exceptional  case  can  of  itself  sustain  no  analogy,  since  the  instance  from 
which  we  reason  — the  analogon  — must  always  be  one  which  implies  the 

rule. 

Hence  it  may  be  seen  how  opposite  parties  will  treat  an  argument  from 
analogy.  He  who  maintains  it  will  lay  stress  upon  whatever  is  common  to 
the  example  and  the  case  in  hand,  and  will  represent  the  desired  conclusion 
as  a  logical  consequence  of  this  common  principle.    On  the  other  hand,  the 


ArPENDix.  277 

opponent  will  point  out  the  differences,  and  deduce  logically  from  these  a 
denial  of  the  same  conclusion. 

As  an  example  of  analogical  reasoning  upon  a  legal  subject  comprising 
several  members,  we  may  take  the  following  from  Cicero,  Topica,  c.  10: 
Sunt  enim  similitudines,  quae  ex  pluribus  collaiiunibus  perveniunt,  quo  volunt, 
hoc  modo:  Si  tutor  fidem  pr&stare  debet,  si  socius,  si,  cui  mandaris,  si,  qui 
flduciam  acceperit :  debet  etiam  procurator. 

Examples  of  the  effect  of  analogy  in  the  growth  of  law  may  be  found  in 
many  civilian  terms,  such  as  obligations  quasi  ex  contractu  (Institut.  III., 
28) ;  accusatio  quasi  publico  against  the  tutor  suspect  us  (Institut.  I.,  2G,  3)  ; 
ponna  falsi  and  quasi  falsi  (Dig.  XLVIIL,  10,  1,  §  13);  other  cases  will 
be  found,  Institut.  II.,  11,  G;  III.,  28,  G;  IV.,  5,  etc.  There  are,  more- 
over, many  examples  of  growth  by  analogy  in  the  same  law, — e.g.,  of  the 
origin  of  the  actio  utilis,  Dig.  VII.,  1,  17,  §  3;  utilem  actionem  exemplo 
Aquilice,  Dig.  XVII.,  10,  1 ;  Dig.  XXXVII.,  12,  1,  etc.  Examples  of  a 
doubtful  analogy  in  Institut.  II.,  1,  33;  compare  30.  Also  Dig.  XVI.,  1,1; 
compare  §4.  An  analogical  argument  of  Grotius  (De  jure  belli  et  pods, 
Lib.  III.,  6,  G,  note  h)  has  some  historical  importance.  The  French 
marine  ordinances,  for  instance  the  one  of  1543,  declared  that  the  neutral 
ship  which  bore  the  enemy's  goods  should  be  forfeited  with  them.  Grotius 
limits  this  to  the  case  where  the  ship-owner  knew  the  hostile  character  of 
the  goods,  and  adduces  for  this  the  following  analogy  from  the  Roman 
law  (Dig.  XXXIX.,  4,  11,  2,  Paulus)  :  "If  the  ship-owner  himself,  or  the 
freighters,  have  unlawfully  placed  any  thing  on  board,  the  ship  also  is  for- 
feited to  the  treasury;  but  if  in  the  owner's  absence  that  has  been  done 
by  the  master,  or  pilot,  or  boatswain,  or  any  of  the  crew,  these  are  pun- 
ished in  person,  and  with  forfeiture  of  the  goods,  but  the  ship  is  restored 
to  the  owner."  This  analogy  is  incorrect,  for  there  is  a  specific  difference. 
The  law  treats  of  an  offence  against  the  statutes  of  a  single  state;  the 
case  in  Grotius  is  one  of  the  freedom  of  trade  in  international  law. 

False  analogies  are  very  frequent  whenever  rules  are  borrowed  from 
foreign  law,  —  as  in  the  many  cases  where  the  legal  names  and  terms  of 
the  civil  law  are  imposed  upon  institutions  of  Germanic  origin.  See  p. 
239  ante,  as  to  the  cases  of  this  kind  in  early  English  law.  So  it  is  a 
false  political  analogy  by  which,  since  Montesquieu's  time,  the  English 
Constitution  has  been  held  up  as  a  model  for  all  states,  without  consider- 
ing the  difference  made  by  historical  circumstances.  The  logical  mistake 
brings  with  it  ethical  injury  to  the  indigenous  constitution  of  the  people 


278  APPENDIX. 

which  is  the  subject  of  the  mistake,  interferes  with  the  sound  development 
of  the  native  law,  and  prevents  that  law  from  being  clearly  understood  by 
the  people.    Trendelenburg,  Naturrecht  auf  dem  Grunde  der  Ethik,  §  73. 

In  Savigny's  view,  analogy  is  the  method  by  which  all  deficiencies  in  the 
positive  law  are  supplied  in  the  absence  of  legislation.  He  thinks  that  all 
the  differing  views  of  jurists  upon  this  subject  may  be  reduced  to  two,  — 
that  which  assumes  a  law  of  nature  as  the  source  from  which  these  defi- 
ciencies in  the  positive  law  are  to  be  supplied,  and  that  by  which  the 
positive  law,  regarded  as  an  organism,  has  the  power  of  completing  itself 
by  this  process  of  reasoning  from  analogy;  and  of  these  two  views  he 
regards  the  latter  as  the  only  true  one.  Its  effect  is  produced,  he  says, 
in  two  methods :  the  first,  when  a  new  relation,  previously  unknown  to 
the  law,  requires  that  the  proper  rules  which  govern  it  should  be  deter- 
mined, and  thus  gives  rise  to  an  entire  new  doctrine,  or,  as  the  German 
jurists  express  it,  to  a  new  legal  institution  (recht-institut)  ;  the  second, 
and  more  common,  when  a  single  new  question  arises  in  a  doctrine  already 
familiar.  Such  a  question  must  be  answered  by  the  analogy  of  the  rules 
already  existing  upon  the  same  doctrine.  (The  strong  resemblance  of  this 
view  with  Paley's  "competition  of  opposite  analogies"  will  be  seen  at 
once.)  In  either  case,  the  analogy  may  point  the  way  to  the  proper  legis- 
lation on  the  subject,  or  it  may  guide  a  judge  in  determining  the  question 
as  one  of  common  law,  — i.e.,  will  become  an  aid  to  interpretation. 

The  use  of  analogy  always  presupposes  consistency  in  the  law;  not 
always,  indeed,  a  complete  logical  connection,  such  as  exists  between 
cause  and  effect,  but  an  organic  hai'mony,  resulting  from  the  practical 
nature  of  legal  relations  and  the  objects  for  which  the  law  exists.  In 
reasoning  analogically,  we  always  start  with  a  datum  or  premise  which 
may  be  a  rule  of  the  positive  law,  or,  more  frequently,  may  itself  be  the 
result  of  theoretical  reasoning.  In  all  cases,  however,  says  S.,  reasoning 
by  analogy  is  essentiall}T  different  from  the  process  of  extensive  interpre- 
tation, with  which  it  is  often  confounded.  The  object  of  the  latter  is  not 
to  supply  a  defect  in  the  law,  but  to  correct  a  mistake  in  the  letter  by  the 
spirit  of  the  law.  In  analogical  reasoning,  oh  the  otfier  hand,  we  assume 
that  there  is  an  actual  omission  in  the  sense  of  the  law;  and  we  aim  to 
supply  this  by  reasoning  from  the  organic  unity  of  the  whole  system. 
Therefore  we  must  never  reason  analogically  from  exceptional  cases,  or 
privileges,  or  jura  singularia.  Even  when  the  aualogy  of  an  anomalous  or 
exceptional  case  is  invoked,  not  for  the  purpose  of  extending  the  excep- 


APPENDIX.  279 

lion,  but  to  decide  a  new  and  similar  question,  although  this  is  a  true 
Instance  of  analogy,  still  the  proceeding  is  improper.  We  ought  rather 
to  seek  for  that  purpose  an  analogy  from  the  general  law;  for  all  analog- 
ical reasoning  rests  simply  on  the  internal  harmony  of  the  entire  system 

of  law.  Anomalous  rules  grow  out  of  other  principles,  and  are  merely 
interpolated  into  that  system,  and  consequently  cannot  share  in  the 
organic  power  of  development  which  the  system  possesses. 

The  Romans  had  very  correct  notions  of  the  growth  of  law  by  analogy, 
though  they  did  not  always  distinguish  this  process  correctly  from  pure 
interpretation.  L.  12,  de  Leg.  (1,3),  " ad  similia  procedere ;  "  L.  27  eod., 
"  qua?  quandoque  similes  erunt;  "  L.  32,  p.  eod.,  "  quod  proximum  et  con- 
sequens  ei  est;  "  L.  2,  §  18,  C.  de  vet.  jure  enucl.  (1,  17),  where  Hadrian 
says  the  provisions  of  the  edict  shall  be  extended,  —ad  ejus  [edicti]  regu- 
las  ejusque  conjecturas  et  imitationes. 

This  organic  development  of  the  law  takes  place  chiefly  in  the  form  of 
fictions  and  utiles  actiones.  Gai.  IV.,  §§  10,  33-3S.  The  harmony  of  the 
new  with  the  old  is  thus  assured,  and  the  S3Tstematic  unity  of  the  entire 
law  preserved.  An  example  on  a  large  scale  is  the  bonorum possessio, 
which  must  be  regarded  throughout  as  a  fictitious  hereditas.  Ulp.  XXVIII., 
§  12;  L.  2,  de  B.  P.  (37,  1),  L.  117,  de  R.  J.  (50,  17). 

Would  it  be  too  bold  to  say  that  all  analogical  reasoning  depends  on  the 
imperfection  of  our  knowledge,  in  this  sense :  that  a  wiser  being,  seeing 
more  perfectly  than  we  can  the  resemblances  by  which  singulars  are 
reduced  to  generals,  and  thus  fitted  to  be  the  premises  of  a  syllogism, 
would  in  every  instance  either  see  our  analogy  as  an  actual  sameness  of 
nature  or  of  relations,  and  thus  reason  from  it  conclusively;  or  else  would 
reject  it  altogether  as  a  mistaken  resemblance? 

If  this  be  so,  the  terms  analogical  reasoning,  analogical  interpretation, 
must  be  mistakes,  and  all  attempts  to  define  them  failures.  The  single 
question  as  to  the  validity  of  any  analogy  would  then  be:  is  the  resem- 
blance between  the  terminus  a  quo  and  the  terminus  ad  quern  of  our 
reasoning  sufficient  to  warrant  an  assumption  of  a  real  connection 
between  them,  and  inferences  from  that  connection?  If  so,  the  analogy 
is  a  valid  one,  from  which  we  may  reason  as  from  a  proved  class,  though 
our  results  will  always  be  contingent,  because  the  premise  is  so.  If  not, 
the  analogy  is  a  deception,  and  the  inferences  from  it  must  be  simply  mis- 
leading. 

There  is  perhaps  no  phrase  in  our  books  capable  of  more  important 


280  APPENDIX. 

applications,  nor  any  which  has  led  to  more  confusion  and  perplexity  from 
misapplication,  than  that  of  ratio  legis,  —  the  reason  of  the  law.  It  consti- 
tutes the  essential  part,  or  that  which  determines  the  sense,  of  two  maxims 
in  very  constant  use :  ubi  eadem  legis  ratio,  eadem  legis  dispositio,  and  the 
still  more  common  cessante  ratione  legis,  cessat  lex  ipsa.  It  is  evident  that 
if  the  ratio  legis  could  be  determined  with  precision,  so  that  these  two 
maxims  could  be  reasoned  from  with  logical  accuracy,  they  would  furnish 
the  basis,  or  major  premise,  for  a  large  part  of  all  the  arguments  made  at 
the  bar ;  at  least  of  all  those  which,  in  the  famous  phrase  of  Paley,  consist 
in  the  "competition  of  opposite  analogies."  Principles  of  Moral  and 
Political  Philosophy,  Book  VI.,  chap.  8,  p.  493  (ed.  Phila.  1794).  For  it 
is  evident  that  the  first  step  in  the  strife  of  these  analogies  must  be  to 
measure  each  of  them  separately  with  the  case  in  hand,  and  to  determine 
as  accurately  as  possible  the  degree  of  likeness  referred  to  in  one  of  the 
maxims,  or  of  unlikeness  in  the  other. 

The  word  "cessante,"  in  the  second  maxim,  is  often  understood  as  if  it 
referred  only  to  the  question  of  time,  and  implied  that  a  reason  which  had 
exactly  covered  the  case  previously  had  now,  by  a  change  of  circumstances^ 
ceased  to  do  so.  But  this,  though  a  possible  application,  is  not  the  only 
or  even  the  most  important  one.  The  cessation  is  evidently  a  logical,  not 
a  chronological,  one.  The  reason  ceases  to  apply,  not  because  the  law  in 
question  has  grown  old,  but  because  in  our  mental  processes  we  are 
receding  from  it.  The  law  ceases  to  applyfwhen  we  reach  cases  not 
covered  by  its  reason. 

The  misconstruction  just  referred  to  seems  to  be  closely  connected  with 
another,  by  which  the  reason  of  a  law  is  confounded  with  the  cause  of  it,  — 
the  ratio  legis  with  the  occasio  legis.  (The,  colloquial  use  of  the  English 
word  reason  favors  the  confusion.)  Thus,  to  use  a  civilian  example, 
the  occasio  of  the  Senatusconsultum  Macedonianum,  as  we  are  expressly 
informed  (Dig-  XIV.,  6,  1  pr.),  Avas  the  usurious  practices  of  a  single 
individual;  but  its  ratio  is  pointed  out  in  the  same  passage,  taken  from 
the  edict  itself,  in  the  words  ne  cui,  qui  filio  familias  mutuam  pecuniam 
dedisset,  etiam  post  mortem  parentis  ejus,  cujus  in  potestate  fuisset,  actio- 
petitioque  daretur,  etc.;  and  certainly  no  one,  in  this  case,  could  ever 
make  the  blunder  of  supposing  that  the  law  was  intended  to  cease  with 
the  death  of  the  usurer  to  whose  practices  it  owed  its  origin. 

The  history  of  the  maxim  throws  some  light  on  its  meaning.  It  may  be 
traced,  like  so  many  other  maxims  current  in  English  law,  to  the  Glossators, 


APPENDIX.  281 

being  found  in  the  gloss  to  Dig.  XXXV.,  1  (de  conditionibus,  etc.),  1.  72, 
§  6.  Papinian  in  the  text  says :  Falsam  causam  legato  non  obesse  verius  est, 
quia  ratio  legandi  legato  non  cohoeret ;  to  which  the  gloss  adds :  Scilicet  ut  ea 
cessante,  cesset  legation ;  secus  autem  est  in  ratione  legis,  nam  ea  cohn  ret 
in  tantum  ut,  ea  cessante  cesset  lex.  It  is  evidently  framed  on  the  model 
ut'  another  maxim,  which  occurs  very  frequently  in  the  gloss  :  causa  cessante, 
cessat  effectus ;  and  the  qualification  of  the  latter  maxim,  found  in  several 
passages,  deserves  notice  in  this  connection.  Cessante  causa  cessat  effectus 
quando  cessat  causa  finalis;  secus  quando  cessat  impulsiva.  Glo.  ad 
Dig.  I.,  7  (de  adoptionibus),  1. 13 ;  glo.  ad  Dig.  III.,  1  (de  postulando),  1.  1, 
§  5.  In  the  latter  place  the  distinction  is  curiously  illustrated.  The  text 
explains  the  law  forbidding  women  to  sue  before  the  prastor,  and  assigns 
as  its  reason  (ratio)  that  it  would  be  contrary  to  the  modesty  of  their  sex 
and  an  assumption  of  masculine  duties  for  them  to  appear  in  the  causes  of 
others.  It  then  goes  on  to  explain  the  occasion  (origo)  of  the  law  from  the 
well-known  case  of  Calphumia,  a  very  vile  woman,  who  acted  so  immod- 
estly in  bringing  suits,  and  so  annoyed  the  pra3tor,  that  women  were 
thenceforth  forbidden  to  plead.  Upon  which  the  glossator  comments  thus : 
"  How  then?  if  a  good  woman  may  by  chance  be  found,  shall  she  not  be 
allowed  to  plead?  It  might  seem  so,  for  cessante  causa  cessat  quoque 
effectus.  But  I  say  otherwise ;  for  that  maxim  is  true  only  of  the  final 
cause.  But  the  impudence  of  Calphumia  was  the  impelling  cause  here; 
the  final  cause  of  the  law  was  the  preservation  of  modesty,  "etc.  After 
this  example,  it  can  hardly  be  necessary  to  point  out  that  in  this  distinction 
of  final  and  impelling  causes  we  have  the  exact  counterpart  of  the  dis- 
tinction between  the  reason  of  the  law,  in  its  true  sense,  and  the  occasion 
of  the  law,  pointed  out  above. 

Yet  Mr.  Austin's  criticism  of  this  maxim  seems  to  rest  on  precisely  such 
a  mistake.  He  thinks  only  of  a  case  where  the  motive  which  impelled  the 
legislature  to  enact  a  law  has  ceased  to  operate,  and  says  with  perfect 
truth  that  the  statute  does  not  lose  its  force. 

"One  of  their  [the  civilians']  commonest  rules  of  interpretation,  ces- 
sante ratione  legis,  cessat  lex  ipsa,  applies  solely  to  precedents,  and  does 
not  apply  to  statute  law.  For  in  statute  law,  the  law  is  one  thing,  the 
reason  another ;  the  law,  as  a  command,  may  continue  to  exist  although 
its  reason  has  ceased,  and  the  law  consequently  ought  to  be  abrogated; 
but  there  it  is,  the  solemn  and  unchanged  will  of  the  legislator,  which  the 
judge  should  not  take  it  upon  himself  to  set  aside,  though  he  may  think  it 


282  APPENDIX. 

desirable  that  it  should  be  altered.  But  in  the  case  of  judiciary  law,  if  the 
grouud  of  the  decision  has  fallen  away  or  ceased,  the  ratio  decidendi  being 
gone,  there  is  no  law  left."  Lectures  on  Jurisprudence,  II.,  p.  652.  The 
true  doctrine  of  our  law  seems  to  be  much  better  expi'essed  by  Mr.  Fearne, 
in  the  following  passage :  — 

"  We  have  many  laws  the  origin  of  which  cannot  at  this  distant  period 
be  traced  at  all,  yet  justly  should  we  laugh  at  the  man  urging  that  as  an 
argument  against  the  present  validity  of  such  laws ;  and  surely  a  law  for 
which  no  reason  at  all  now  appears  has  no  more  original  ground  in  the 
present  state  of  things  than  a  law  whose  origin  may  be  traced  up  to  a 
circumstance  which  does  not  now  exist.  *  *  *  It  is  true,  where  those 
things  which  are  the  objects  of  any  rule  of  law  cease  to  exist,  there  the 
rule  itself  must  of  necessity  cease,  for  want  of  subject-matter  to  relate  to, 
or  have  any  effect  upon :  but  it  by  no  means  follows  that  where  the  same 
objects  of  a  law  still  continue,  that  there  the  law  should  cease,  only 
because  the  same  state  of  things  which  was  the  first  occasion  of  it  no 
longer  exists."  Essay  on  Contingent  Remainders,  etc.,  pp.  59,  60,  Chap. 
I.,  Sec.  V.,  par.  17. 

The  distinction  made  by  Mr.  Austin  between  the  effect  of  this  rule  upon 
statute  and  common  law  will  be  discussed  in  another  place.  At  present, 
it  is  enough  to  say  that  in  the  broad  and  unqualified  manner  in  which  he 
states  it,  it  can  only  be  supported  by  the  confusion  of  terms  already 
pointed  out.  That  a  statute,  as  well  as  a  decision,  may  be  abrogated  or 
deprived  of  force  by  the  cessation  of  its  reason, — the  word  being  taken 
in  its  proper  sense,  —  maybe  illustrated  by  a  single  example  from  Lord 
Coke.  In  the  Third  Institute,  Chap.  XXXV.,  speaking  of  the  act  for- 
bidding congregations  by  Masons  in  their  chapters  (stat.  3  Hen.  VI., 
c.  14),  he  says:  "The  cause  wherefore  this  offence  was  made  felony  is 
for  that  the  good  course  and  effect  of  the  statutes  of  Laborers  were 
thereby  violated  and  broken.  Now,  all  the  statutes  concerning  Laborers 
before  this  act,  and  where  unto  this  act  doth  refer,  are  repealed  by  the 
statute  of  5  Eliz.,  c.  i,  whereby  the  cause  and  end  of  the  making  of  this 
act  is  taken  away,  and,  consequent^,  this  act  is  become  of  no  force  or 
effect;  for  cessante  ratione  legis,  cessat  ipsa  lex."     p.  99. 

Though  the  preamble  of  one  act  may  appear  to  be  directed  against  a 
particular  evil,  and  though  another  act  may  be  passed  to  aid  in  its  appli- 
cation, the  enactments  of  the  second  act  are  not  necessarily  to  be  confined 
to  the  special  purpose  which  seemed  to  be  the  particular  purpose  that  the 


APPENDIX.  283 

first  had  in  view.     Its  own  words  must  be  considered  as  explaining  and 
defining  its  objects  and  its  means.1 


NOTE     H. 

EQUITABLE   INTERPRETATION. 

The  term  of  equitable  interpretation  has  perhaps  been  used  more 
vaguely  and  indefinitely  than  any  other  in  the  entire  range  of  phrases 
pertaining  to  this  topic.  This  has  been  especially  true  of  English  and 
American  law,  because  in  that  system  the  meanings  attached  to  the 
primary  term  "equity"  have  varied  more  widely  than  elsewhere.  All 
that  was  fluctuating,  and  even  capricious,  in  the  civilian  use  of  ccquitas 
has  been  diligently  applied  by  writers  to  the  English  word,  and  new 
sources  of  confusion  have  grown  out  of  applications  unknown  to  any 
other  jurisprudence. 

In  order  to  fix  as  exactly  as  possible  the  true  meaning  of  the  principal 
phrase,  it  is  necessary  to  dwell  for  a  moment  upon  that  from  which  it  is 
formed,  though  we  need  not  speculate,  as  Mr.  Austin  aud  others  have 
done,  upon  its  etymology.     Lectures  on  Jurisprudence,  p.  596. 

The  notion  of  equity  is  determined,  not  so  much  by  the  derivation  of  the 
word  itself  —  for  we  find  the  same  notion  very  clearly  apparent  to  Aristotle 
in  the  Greek  term  z-nuz'.o.  —  as  by  the  notion  with  which  it  is  compared, 
that  of  law.  The  true  relation  of  the  two  is  well  expressed  by  the  familiar 
maxim  that  equity  is  the  correction  of  law,  where  that  is  deficient  by  rea- 
son of  its  generality.  This  does  not  mean,  as  it  is  too  often  misunderstood, 
that  equity  is  a  distinct  and  separate  jurisdiction,  interfering  to  review  or 
enjoin  the  decision  of  the  stricter  tribunal  in  hard  cases.  The  maxim  was 
formed  long  before  such  a  distinct  jurisdiction  was  dreamed  of;  and  this 
misapplication  of  it  is  only  one  of  the  numerous  mistakes  into  which 
modern  writers  have  been  led  by  a  confusion  as  to  the  history  of  the  term, 
of  which  we  shall  speak  below.  The  "generality"  meant  in  the  maxim 
belongs  to  law,  as  law,  —  as  a  fixed  and  prescribed  rule,  —  no  matter  how 
or  where  it  may  originate :  to  the  law  laid  clown  by  a  precedent  of  a  modern 
court  of  chancery,  no  less  than  to  that  adjudicated  by  a  court  of  common 


»  Copland  v.  Davies,  L.  li.5  II.  L.  353  (1S72) ;  2  Moak,33. 


284  APPENDIX. 

law ;  to  the  law  formulated  by  both,  no  less  than  to  that  enacted  by  the 
lawgiver.  It  is  of  the  very  essence  of  any  such  rule  of  law  that  its  com- 
mand should  be  expressed  in  general  terms.  It  must  describe  human  acts 
by  classes,  and  prescribe  the  consequences  of  each  according  to  the  general 
class  to  which  it  belongs,  and  not  according  to  the  peculiar  circumstances 
of  each  act.  The  circumstances  under  which  one  man  may  take  another's 
life  are  innumerable,  and  there  may  be  as  many  differing  degrees  of  moral 
blame  attendant  upon  them ;  but  the  law  groups  them  all  under  the  four 
categories  of  murder,  manslaughter,  excusable  and  justifiable  homicide. 
If  A.  claims  a  civil  right  against  B.  under  a  certain  rule  of  law,  he  must 
show  himself  entitled  to  it  by  certain  marks  which  the  law  itself  pre- 
scribes, disregarding  a  multitude  of  other  marks  equally  present  in  the 
transaction  between  them.  All  the  certainty  of  law,  and  its  very  existence 
as  a  prescribed  rule,  depend  on  this  regulation  of  the  sequence  of  actions 
by  selected  marks,  and  its  disregard  of  all  other  circumstances,  causes, 
motives,  etc.,  which  have  contributed  to  the  existence  of  each  action. 

But  while  this  is  so  in  theory,  it  does  not  follow  that  justice  is  always 
dispensed  among  men  upon  such  exact  and  foreordained  rules.  Human 
wisdom  could  not  frame  a  system  of  laws  that  human  nature  could  endure, 
if  every  action  were  thus  rigidly  adjudged  in  advauce.  There  must  be 
some  flexibility,  some  power  to  consider  results  and  motives,  some  discre- 
tion in  the  substitution  of  one  mark  for  another.  It  may  exist  in  the  form 
of  a  pardoning  or  dispensing  power;  in  that  of  judicial  discretion  as  to  the 
judgment  to  be  pronounced  on  given  facts;  in  the  committal  of  certain 
sequences  to  a  jury,  or  other  tribunal,  to  be  determined  as  "  questions  of 
fact;  "  in  actions  "  upon  the  case ;  "  in  a  jurisdiction  formally  equitable, 
or  in  equitable  interpretation  of  the  letter  of  a  statute.  In  all  these  cases 
alike,  the  rigor  of  the  law  will  be  found  to  be  modified  by  the  same  method. 
The  exact  sequence  of  acts  pi-escribed  by  the  law  will  be  set  aside  in  favor 
of  one  more  consistent  with  the  demands  of  justice  or  morality,  upon  a  view 
of  all  the  circumstances  of  the  individual  case.  The  process  will  always 
be  a  specializing  one.  And  it  is  this  process  of  drawing  a  conclusion  from 
the  special  facts  of  the  case,  outside  of  or  in  addition  to  the  marks  pre- 
scribed by  the  general  law,  that  we  call  equity,  in  all  its  varying  forms. 

It  would  be  an  interesting  task,  if  space  permitted,  to  show  the  truth  of 
the  remark  that  all  the  proceedings  mentioned  above  are  essentially  equi- 
table in  their  nature.  It  must  suffice  here  to  refer  to  the  actiunes  in  factum 
and  ex  aequo  et  bono  of  the  Roman  law,  and  to  the  recognized  equitable 


AFFENDIXi  285 

character  of  the  "actions  upon  the  case"  of  our  own.  This  is  more 
clearly  pointed  out  in  Cowell's  Institutes  than  in  any  other  work  I  remem- 
ber. To  the  same  effect  is  the  well-known  dictum  that  the  verdict  of  a  jury 
on  a  question  of  fact  is  always  bound  by  no  law  in  the  world  but  that  of 
their  own  consciences  (Kendall  v.  John,  Fost.  117) ;  and  the  result  will  be 
the  same  if  we  compare  with  the  above  account  of  equity  the  distinction 
of  law  and  fact  as  expressed  by  Biener  (Geschw.  Gericht,  III.,  133), 
explaining  the  maxim  that  the  judges  answer  to  the  law,  the  jury  to  the 
facts. 

"This  maxim  has  the  practical  consequence,  that  all  for  which  a  general 
rule  valid  in  all  cases  can  be  found,  belongs  to  the  judge,  or  the  jury  must 
at  least  be  instructed  therein  by  him;  while  on  the  other  hand,  that  which 
cannot  be  subjected  to  any  general  rule,  but  is  to  be  judged  by  the  circum- 
stances of  the  individual  case,  is  left  to  the  decision  of  the  jury." 

"  The  idea  of  an  authority  vested  in  the  judges  to  disregard  the  letter  of 
a  statute  in  order,  in  a  given  case,  to  attain  the  ends  of  justice,  is  familiar 
to  the  authors  of  the  civil  law;  and  by  them  this  vague  and  undefined 
power  is  called  cequitas.  (Puffendorf,  Elem.  Jur.  Univ.,  I.,  def.  13,  §  22.) 
This  idea  of  a  natural  equity  to  be  observed  in  the  construction  of  a 
statute  runs  through  all  the  great  authors  of  the  civil  law.  From  the  civil 
the  maxim  was  imported  into  the  common  law.  [Citing  Lord  Coke,  as 
below.]  And  the  proposition  that  in  construing  a  statute  the  judges  have 
a  right  to  decide  in  some  cases  even  in  direct  contravention  of  its  language, 
has  been  repeatedly  asserted  and  practised  upon  by  the  highest  authority." 
Sedgw.  on  Stat.  &  Const.  Law,  20G,  297  (citing  to  last  remark,  Margate 
Pier  Co.  v.  Hannam,  3  Barn.  &  Aid.  2GC;  Canal  Co.  v.  Railroad  Co.,  4  Gill 
&  J.  152;  Brown  v.  Somerville,  8  Md.  444,  45G;  Bac.  Abr.,  tit.  "Statute," 
I.;  Jackson  v.  Collins,  3  Cow.  89,  96;  The  People  v.  Utica  Ins.  Co.,  15 
Johns.  358,  380,  381). 

Hence  arose  in  our  law  the  common  phrase,  "equity  of  a  statute,"  as 
in  the  following  passage  from  Littleton  :  — 

"And  all  these  entailes  aforesaid  be  specified  in  the  said  statute  of 
Westm.  2.  Also  there  be  divers  other  estates  in  taile,  though  they  be  not 
by  expresse  words  specified  in  the  said  statute,  but  they  are  taken  [i.e., 
included  or  governed]  by  the  eqnitie  of  the  same  statute.'1''  Lit.,  §  21. 
In  his  note  to  which,  Lord  Coke  gives  the  following  excellent  definition: 
"Equitie  is  a  construction  made  by  the  judges,  that  cases  out  of  the  letter 
of  a  statute,  yet  being  within  the  same  mischiefe,  or  cause  of  the  making 


286  APPENDIX. 

of  the  same,  shall  be  within  the  same  remedie  that  the  statute  provideth; 
and  the  reason  hereof  is  that  for  the  law-makers  could  not  set  downe 
all  cases  in  expresse  terms :  iEquitas  est  convenientia  rerum  quae  cuneta 
coaequiparat,  et  qua?  in  paribus  rationibus  paria  jura  et  judicia  desiderat." 
1  Inst.  246.  And  see,  for  illustrations,  Com.  Dig.,  tit.  "Parliament,"  K,.  13 
to  R.  20. 

If  we  examine  the  cases  collected  by  Comyns,  to  which  I  have  just  given 
a  reference,  it  will  be  seen  that  this  kind  of  equity  in  construing  statutes 
is  employed  just  as  freely,  and  perhaps  still  more  often,  by  the  common-law 
courts  than  by  chancery  and  other  equity  tribunals,  and  that  the  rules 
which  govern  it  are  the  same  in  both  jurisdictious.  This,  of  itself,  will  be 
sufficient  to  prove  that  it  is  an  entirely  different  thing  from  equity  as  a 
form  of  jurisdiction,  and  that  no  one  would  probably  have  confounded 
them  together,  if  it  had  not  been  for  the  fact  that  the  same  word  was  used 
to  designate  both. 

Yet  plain  as  the  fallacy  seems  to  us  now,  it  is  certain  that  some  great 
lawyers  have  been  deceived  by  it.  Among  these  must  be  reckoned  Black- 
stone  himself,  at  least  in  certain  passages  of  his  first  volume  (pp.  61,  92), 
where  he  gives  a  very  good  account  of  the  equity  applied  to  the  interpre- 
tation of  a  statute,  but  seems  to  regard  it  as  the  same  thing  with  the 
equity  of  the  courts.  Yet  when  he  subsequently  comes  to  treat  of  the 
latter,  —  that  is,  of  courts  of  equity,  — he  describes  the  former  so  correctly 
that  it  is  evident  the  confusion  was  rather  in  his  language  than  in  his 
thought. 

"  It  is  said  that  a  court  of  equity  determines  according  to  the  spirit  of 
the  rule,  and  not  according  to  the  strictness  of  the  letter.  But  so  also 
does  a  court  of  law.  Both,  for  instance,  are  equally  bound  and  equally 
profess  to  interpret  statutes  according  to  the  true  intent  of  the  legislature. 
In  general  law,  all  cases  cannot  be  foreseen,  or,  if  foreseen,  cannot  be 
expressed ;  some  will  arise  that  will  fall  within  the  meaning,  though  not 
within  the  words,  of  the  legislator ;  and  others,  which  may  fall  within  the 
letter,  may  be  contrary  to  his  meaning,  though  not  expressly  excepted. 
These  cases  thus  out  of  the  letter  are  often  said  to  be  within  the  equity 
of  an  act  of  Parliament ;  and  so  cases  within  the  letter  are  frequently  out 
of  the  equity.  Here  by  equity  we  mean  nothing  but  the  sound -interpre- 
tation of  the  law,  though  the  words  of  the  law  itself  may  be  too  general, 
too  special,  or  otherwise  inaccurate  and  defective.  These,  then,  are  the 
cases  which,  as  Grotius  says,  '  lex  non  exacte  definit,  sed  arbitrio  viri  boni 


APPENDIX.  287 

permittit,'  in  order  to  find  out  the  true  sense  and  meaning  of  the  law- 
giver from  every  other  topic  of  construction.  But  there  is  not  a  single  rule 
of  interpreting  laws,  whether  equitably  or  strictly,  that  is  not  equally  used  by 
the  judges  in  the  courts  both  of  law  and  equity.  The  construction  must  in 
both  be  the  same;  or  if  they  differ,  it  is  only  as  one  court  of  law  may  also 
happen  to  differ  from  another.  Each  endeavors  to  fix  and  adopt  the  true 
sense  of  the  law  in  question;  neither  can  enlarge,  diminish,  or  alter  that 
sense  in  a  single  tittle."  3  Bla.  Coram.  431.  See  also  Story's  Eq.  Jur.. 
§7. 

It  should  be  added  that  the  results  of  the  ambiguity  have  not  been  con- 
fined altogether  to  confusion  of  thought.  There  is  a  large  class  of  cases 
in  which  courts  of  equity,  especially  during  the  seventeenth  century,  car- 
ried their  power  so  far  as  to  override  the  express  words  of  statutes,  where 
in  the  particular  case  these  words  appeared  to  them  to  work  hardship  or 
inconvenience  (Sedgwick,  p.  3C3)  ;  and  although  "  this  power  in  regard  to 
statutes  is  now  looked  on  with  distrust,  and  courts  of  equity  endeavor  to 
adhere  to  the  much  more  logical  rule  that  equity  follows  the  law,  yet  the 
effect  remains  in  certain  methods  of  interpretation  peculiar  to  equity,  espe- 
cially with  regard  to  a  few  important  statutes,  like  those  of  frauds,  of 
registry,  and  of  limitations.  But  the  importance  of  these  is  greatly  dimin- 
ished with  us  in  America,  since  these  statutes  are  nearly  all  reworded,  and 
are  therefore  to  be  construed  anew,  the  old  peculiarities  of  the  English 
system  being  either  approved  by  adoption  into  the  statute  itself,  or 
rejected.  For  illustration  see  Story,  §  753  et  seq.,  on  parol  agreements 
for  sale  of  lands."     Sedgwick,  pp.  362,  363. 

"  It  is  also  important  to  remark  that  the  rule  [of  equitable  construction 
of  a  statute]  has  been  applied  more  freely  to  the  ancient  statutes  than  it 
now  is  to  those  of  more  modern  date,  which  are  interpreted  somewhat 
more  strictly,  and  with  closer  adherence  to  the  letter.  For  the  style  of 
framing  acts  of  Parliament  has  itself  undergone  a  material  change,  —  those 
of  a  more  ancient  era  being  comparatively  short,  and  general  in  their  char- 
acter, while  the  later  acts  are  expanded  into  minute  detail,  and  intended 
to  reach  every  specific  case ;  and  therefore,  in  adopting  a  construction  not 
in  strict  conformity  with  the  language  of  the  legislature,  there  is  more 
danger  than  there  once  was  of  going  beyond,  or  falling  short  of  its  real 
intention."  1  Stephen's  Comm.  77  (citing  Rex  v.  Gardner,  6  Ad.  &  E.  118, 
per  Coleridge,  J. ;  Brandling  x>.  Barrington,  6  Barn.  &  Cress.  175;  Rex  v. 
Inhabitants  of  Barnam,  8  Barn.  &  Cress.  104;  Notley  v.  Buck,  S  Barn.  & 
Cress.  164;  Adam  v.  Inhabitants  of  Bristol,  2  Ad.  &  E.  395,  399). 


288  APPENDIX. 

It  is  evident  that  in  the  brief  history  of  American  legislation  there  is  no 
contrast  in  the  early  and  late  forms  of  law  such  as  that  referred  to  above ; 
our  oldest  are  much  more  precise,  our  latest  much  less  so,  than  theirs  of 
same  age. 

It  may  be  worth  while  to  point  out  a  sentence  of  Mr.  Sedgwick's  very 
able  work,  that  might  give  a  false  impression,  and  which  may  serve  as  a 
very  good  illustration  of  the  method  by  which  our  law  is  confused  by 
incautious  statements  on  such  matters. 

"This  doctrine  [of  the  equitable  interpretation  of  statutes]  grew  out  of 
the  peculiar  ideas  that  were  engendered  in  the  minds  of  the  English  law- 
yers by  the  double  organization  of  the  tribunals  of  justice :  while  the  com- 
mon-law courts  sat  to  administer  the  strict  rules  of  law,  the  courts  of 
equity  arrogated  to  themselves  the  duty  of  doing  justice  on  a  more 
enlarged  and  liberal  scale,  and  in  the  early  days  of  their  organization 
carried  their  power  so  far  as  to  override  the  express  words  of  statutes 
where,  in  the  particular  case,  it  appeared  to  them  to  work  hardship  or 
inconvenience."     Sedgwick,  pp.  3C2,  3G3. 

A  reader  would  certainly  infer  from  this,  that  this  meaning  of  equity  grew 
out  of  the  use  of  the  power  by  the  courts  of  that  name ;  whereas  the  exact 
converse  is  more  nearly  true :  the  courts  were  first  called  courts  of  equity 
because  they  assumed  a  power  which  had  for  ages  been  known  by  that 
name.  That  Sedgwick  understood  this  is  shown  (pp.  296,  297),  where  he 
describes  clearly  the  use  of  the  term  in  the  civil  law,  and  its  adoption 
therefrom.  But  so  much  confusion  has  been  wrought  by  the  application 
to  chancery  jurisdiction  of  phrases  descriptive  only  of  the  civilian's  cequitas, 
that  it  is  worth  while  to  detect  the  fallacy  where  we  can  clearly  show  it  at 
work. 

Nothing  could  be  easier  to  show  than  that  this  sense  of  equity  was 
familiar  to  the  English  lawyers  for  centuries  before  that  term  was  first 
used  to  denote  the  extraordinary  jurisdiction  of  the  chancellor.  The  word 
is  found  in  the  Anglo-Saxon  coronation-oath;  in  Glanville,  and  all  the 
treatises  that  followed ;  in  the  Year  Books,  and  in  Plowden,  and  always  in 
the  sense  above  explained.  Plowden's  use  of  it  is  worth  noting,  not 
merely  because  it  is  so  frequent  in  his  pages,  but  because  when  he  wrote, 
that  jurisdiction  of  the  chancellor,  with  which  the  name  of  equity  is  now 
so  constantly  associated  in  the  minds  of  English  lawyers,  had  been  in  full 
force  for  at  least  two  centuries.  Yet  Plowden  never  mentions  it  by  that 
name. 

In  the  case  of   Eyston  v.  Studde,  Plow.  459-468,  the   last  four  pages 


APPENDIX.  289 

(of  the  folio  edition,  4G5-4CS)  are  occupied  with  a  note  by  the  reporter, 
addressed  to  the  reader,  giving  a  full  account  of  equity,  as  he  under- 
stood it,  both  In  its  restrictive  and  its  enlarging  effect,  with  many 
Illustrations.  (He  even  applies  it  to  penal  statutes,  contrary  to  the 
modern  doctrine.  Plow.  168.)  See  also  Stradling  r.  Morgan,  Plow.  199- 
.204.  Tor  an  example  from  the  Year  Looks,  see  4°  Ed.  IV.,  p.  8.,  fol.  8> 
"Per  requite  le  stat.  de  Marlbridge."  Lord  Keeper  Egerton  ordered  a 
vexatious  plaintiff,  in  forma  pauperis,  to  be  whipped  upon  the  equity  of 
the  statute  23  lien.  VIII.,  c.  15.  Spence,  Eq.  Jur.  of  the  Court  of  Chan- 
cery, I.,  p.  G90,  note  e. 


NOTE    I. 

ON  THE  VALUE  OF  FORMAL  RULES  OF  INTERPRETATION. 

The  rules  of  interpretation  and  construction  which  Or.  Lieber  has  given 
at  the  end  of  the  fourth  and  fifth  chapters  of  this  work,  and  in  §  VIII. 
of  the  sixth  chapter  (see  pp.  10S,  109,  136,  137,  and  158-105,  ante),  are 
probably  more  familiar  to  the  present  generation  of  American  lawyers  than 
any  other  part  of  his  work;  perhaps  more  so  than  any  part  of  any  other 
work  on  the  same  subject.  They  have  been  repeatedly  copied,  in  whole 
or  in  part,  by  other  writers,  and  have  been  frequently  quoted  by  judges  in 
their  decisions  of  quesl  ion-  to  which  they  are  pertinent.  They  have  given 
an  appearance  of  learning  and  a  tone  of  exact  argument  to  many  disquisi- 
tions in  which  their  authorship  was  not  hinted  at.  Dr.  Liebcr's  volume 
has  so  long  been  out  of  print  — since  a  very  brief  period  after  the  edition 
of  1839  — that  many  of  those  who  have  long  been  familiar  with  the  rules 
will  learn  now  for  the  firsl  time  to  whom  they  were  indebted  for  their  intro- 
duction to  American  law.  Their  succinct  form  and  clear  and  simple  style 
have  impressed  them  on  the  memory  of  students,  wherever  they  might  be 
found,  and  thus  have  given  them  a  vitality  which  has  not  been  shared  by 
the  more  extended  discussions  of  which,  in  Dr.  Lieber's  own  pages,  they 
form  only  the  conclusions.  Most  of  them,  undoubtedly,  have  a  special 
value  in  helping  to  fix  in  a  student's  mind  the  principal  points  and  topics 
of  the  process  of  interpretation,  and  thus  aiding  to  train  his  judgment  in 
applying  to  particular  questions  that  great  mass  of  general  knowledge 

19 


290  APPENDIX. 

which  is  always  taken  for  granted  in  an  opinion  of  any  value  upon  the  con- 
struction of  a  difficult  statute  or  contract,  or  even  upon  the  meaning  of  a 
single  word.  For  even  the  meaning  of  a  single  word  must  always  be  deter- 
mined, in  the  last  resort,  by  considering  the  whole  class  of  things  or  notions 
to  which  it  belongs.  There  is  no  scientific  process  by  which  we  can  extract 
that  meaning  from  the  word,  considered  alone,  without  reference  to  its 
usage  by  the  whole  community,  through  a  greater  or  less  period  of  time, 
and  to  the  usage  of  other  words  by  which  it  is  bounded  on  every  side. 
Our  knowledge  of  this  is  usually  taken  for  granted,  not  expressed,  in  dis- 
cussing its  interpretation,  but  it  is  none  the  less  an  essential  prerequisite 
of  the  process.  And  the  chief  value  of  the  rules  above  referred  to  seems 
to  be,  in  most  cases,  not  that  they  enable  us  to  dispense  with  this  general 
knowledge,  and  decide  the  question  upon  a  single  consideration,  but  that 
they  eliminate,  so  to  speak,  certain  factors  from  the  problem,  and  thus 
reduce  the  remainder  to  more  manageable  proportions. 

Upon  a  comparison  of  the  three  series  of  rules,  it  will  be  seen  that  some 
of  them  are  repeated  literally,  while  others  appear  under  slightly  different 
forms,  but  with  substantially  the  same  meaning.  The  whole  number  may 
also  be  arranged  in  a  few  groups  of  cognate  import.  Thus,  a  small  num- 
ber of  rules  relate  to  the  meaning  of  words,  taken  apart  from  the  context. 
In  connection  with  these,  I  would  ask  the  reader's  attention  to  the  editor's 
note  19,  on  page  106.  The  longer  I  study  the  subject,  the  more  I  am 
impressed  with  the  truth  that  the  sentence  or  phrase  is  usually  the  unit  of 
interpretation,  and  that  false  constructions  oftener  grow  out  of  the  attempt 
to  decide  a  difficult  question  by  the  meaning  of  a  single  word,  taken  by 
itself,  than  from  any  other  cause. 

A  larger  group,  about  a  dozen  in  all,  may  be  formed  of  the  maxims 
which  contain  the  general  principles  of  interpretation.  The  fundamental 
rule  here  is  well  stated  on  page  109 :  "  There  can  be  no  sound  interpreta- 
tion without  good  faith  and  common  sense."  By  these  two  terms  the 
author  evidently  intends  to  cover  that  very  large  part  of  the  entire  process 
whish  cannot  be  reduced  to  more  formal  rules.  Good  faith  is  the  moral 
prerequisite  in  all  interpretation,  as  it  is  in  every  other  question  of  law. 
No  display  of  critical  ingenuity,  no  hollow  pretence  of  conformity  to 
established  rules,  can  make  an  interpretation  acceptable,  if  it  evidently  pro- 
ceeds from  any  other  motive  than  an  honest  desire  to  learn  the  true  mean- 
ing of  the  text  in  question.  And  to  the  average  mind  this  element  of  good 
faith,  or  the  lack  of  it,  in  a  given  case,  will  be  more  easily  appreciated 
than  any  other  quality.    The  grounds  upon  which  the  judgment  is  based 


APPENDIX.  29] 

may  be,  and  in  mo6l  cases  probably  will  be,  too  broad  and  various  for 
explicit  statement,  but  the  result  will  be  no  less  sure  and  decisive  on  that 
account.  It  will  rank  with  those  judgments  which  we  commonly  call 
intuitive,  because  the  mental  processes  thai  lead  to  them  are  too  deep  for 
ordinary  analysis.  i;.v  "common  sense"  Dr.  Lieber  no  doubt  meant  the 
intellectual,  as  by  "  good  faith"  the  moral,  prerequisites  of  interpretation. 
He  includes  under  the  term  that  fund  of  general  knowledge  which  has 
been  mentioned  above  as  taken  for  -ranted  in  the  application  of  all  the-,. 
rules.  Truth  is  always  consistent  with  itself  on  all  sides;  the  best  tesl  oJ 
a  true  interpretation  usually  is,  that  it  agrees  at  all  point-  uith  the  com- 
mon fund  of  knowledge.  To  use  a  phrase  that  has  become  very  popular 
and  well  understood  in  natural  science,  it  is  in  harmony  with  its  environ- 
ment. This  harmony  cannot  be  reduced  to  any  formal  rules,  because  the 
possible  points  of  contact  between  any  one  truth  and  the  rest  of  human 
knowledge  are  numberless.  But  it  is  easily  perceived,  or  rather  felt,  by  a 
sound  mind;  and  it  will  be  decisive  for  or  against  a  proposed  interpreta- 
tion, even  though  all  the  rules  that  may  be  formulated  array  themselves  on 
the  opposite  side.  Thus,  Blackstone  says  that  "  when  one  signification  of 
a  word  induces  an  injustice  or  absurdity,  another  is  to  be  taken,  even 
where  the  unjust  or  absurd  signification  is  the  primary  or  proper  one." 
Law  Tracts,  I.,  2-4. 

A  third  group  may  be  formed  of  the  rules  which  determine  the  com- 
parative force  of  different  modes  of  expression,  and  the  results  of  real  or 
seeming  conflicts  between  different  statements  on  the  same  subject. 
There  are  fifteen  of  these  in  the  three  series,  although  Dr.  Lieber  has 
wisely  rejected  by  far  the  larger  number  of  such  rules  occurring  in  the 
older  writers  on  Interpretation.  The  pedantic  minuteness  and  precision 
to  which  I  have  referred  in  a  previous  note  (B),  as  characteristic  of  the 
fourteenth  and  following  centuries,  displayed  itself  more  fully  in  this  part 
of  the  subject  than  any  other,  as  the  reader  may  readily  see  for  himself  in 
the  pages  of  Menochius  or  Barbosa.  It  would  be  unjust  to  condemn 
their  labors  as  utterly  worthless,  although  we  now  disregard  their  tech- 
nical rules,  and  interpret  freely  by  good  faith  and  common  Bense  when 
they  labored  painfully  over  their  distinctions.  The  English  lawyers  had 
some  traces  of  the  same  method,  as  in  the  "  certainty  to  a  common  intent, 
and  certainty  to  a  certain  intent  in  general,  and  certainty  to  a  certain  intent 
in  every  particular"  of  the  old  rules  of  pleading.  1  Chitty's  Pleading,  213. 
Every  thoughtful  practitioner  of  the  present  day  must  see  that  it  was  the 


292  APPENDIX. 

slow  and  laborious  construction  of  the  common  law,  by  such  a  procedure, 
which  rendered  possible  the  free  and  equitable  practice  of  our  codes  and 
improved  practice  acts.  We  could  hardly  judge  of  equities  at  all,  or  state 
legal  rights  or  wrongs  in  precise  language,  "intelligible  to  a  person  of 
ordinary  understanding,"  as  our  codes  require,  if  our  legal  terms  and 
conceptions  had  not  been  fashioned  to  our  hands  by  centuries  of  a  more 
strict  and  technical  jurisprudence.  The  same  order  of  development  seems 
to  govern  in  all  abstract  sciences.  Man  begins  with  narrow,  strict,  tech- 
nical rules,  formal  language,  arbitrary  definitions ;  and  it  is  only  by  cen- 
turies of  labor  with  these  that  he  gradually  learns  to  dispense  with  them, 
as  clumsy  tools,  to  use  abstract  ideas  with  some  degree  of  freedom,  to 
weigh  and  compare  them  directly,  and  to  form,  upon  general  considera- 
tions, judgments  that  will  commend  themselves  at  once  to  the  reason  and 
conscience  of  the  community.  The  modern  freedom  of  interpretation, 
appealing  for  the  validity  of  its  results  directly  to  "  good  faith "  and 
"common  sense,"  owes  its  accuracy  and  safety  of  judgment  to  the  nar- 
row and  technical  process  of  thought  which  it  has  now  outgrown.  And 
we  may  infer  from  this  the  proper  use  and  value  of  such  formal  rules  as 
are  still  approved.  The  individual  student  will  find  them  great  helps  in 
the  formation  of  his  judgment.  Even  to  the  matured  mind  they  will  often 
prove  of  service  in  formulating  the  question  that  is  to  be  decided.  But 
they  will  rarely  give  a  safe  and  decisive  answer,  taken  alone.  The  weight 
of  "common  sense  "upon  a  question  of  interpretation  so  far  preponder- 
ates now  over  all  other  considerations  embraced  in  these  formal  rules,  that 
even  their  combined  force  (if  they  all  could  be  combined  in  a  single  in- 
stance) would  not  avail  against  it. 

The  fourth  and  last  group  comprises  the  rules  which  relate  to  the  pur- 
pose and  object  of  interpretation  or  construction, in  any  given  case.  They 
maybe  regarded  as  specialized  expressions  of  what  we  mean  by  "good 
faith  and  common  sense  "  in  particular  cases,  and  need  not,  therefore,  be 
commented  on  at  length,  after  what  has  been  said  already  of  these  two 
great  principles  of  interpretation.  Like  all  special  statements,  they  are 
instructive  and  helpful  in  attaining  a  clear  conception  of  the  general  term 
of  which  they  form  part,  but  must  be  carefully  held  subordinate  to  it. 

The  following  table  of  the  maxims  given  in  the  text  is  arranged  to  show 
the  groups  spoken  of  in  this  note.  It  will  be  of  use  also  in  comparing  the 
contents  of  the  three  series,  rule  by  rule,  so  as  to  make  them  illustrate 
each  other.    I  have  tried  to  place  each  rule  in  the  group  to  which  it  most 


Al'PEXDIX. 


293 


properly  seemed  to  belong.  It  must  be  remembered,  however,  that  the 
boundaries  of  such  groups  can  never  be  precise,  and  that  some  of  the  rules 
have  more  than  a  single  object  or  application.  To  another  mind,  they 
would  very  possibly  assume  different  relations,  and  be  differently  ar- 
ranged :  — 


Class. 

Pack  10S. 

Page  136. 

Page  158,  etc. 

2.  Principles 

3.  Comparative  rules  .   . 

4.  Purpose  and  object    . 

Kules  2,  9,  7, 
Rules  4,  5,  6,  8, 

13, 

1,  9,  11,  12,  15,  16, 
6,  7,  8,  11,  14, 
Rules  3,  4,  5,  9, 10,  2, 

1,  3,  4,  5. 

2,  12,  13. 

3,  10,  15,  16,  17, 18. 
6,  7,  8,  9,  10,  11,  14. 

NOTE    J. 


ON  THE   INTERPRETATION   OF   CRIMINAL   LAW. 

The  maxims  that  in  penal  cases  every  interpetation  should  be  favorable 
to  the  accused,  and  that  penalties  may  be  mitigated  but  not  enhanced  by 
interpretation,  are  taken  from  the  Pandects. 

Hermogenianus.  Interpretatione  legum  poenae  molliendse  sunt  potius 
quam  asperandas.     L.  42,  D.  de  pcenis,  XLVIIL,  19. 

Paulas.  In  pcenalibus  causis  benignius  interpretandum  est.  L.  155,  §  2 ; 
D.  de  R.  J.,  L.  17. 

Adopted  in  almost  the  same  words  by  the  Canon  Law.  C.  15,  (lis.  1,  de 
pcenit;  c.  49,  de  reg.  jur.  in  Gto  (Boehmer's  ed.,  Vol.  L,  p.  49,  and  Vol. 
II.,  p.  1039). 

From  this  source  they  ha\c  been  derived  into  the  law  of  modern  Europe, 
English  as  well  as  Continental ;  though  it  is  only  within  the  last  century 
that,  their  spirit  can  be  said  to  have  been  faithfully  followed. 

The  doctrine  that  no  act  can  be  punished  as  a  crime,  unless  it  has  previ- 
ously been  recognized  as  such  by  the  positive  law  of  the  state,  is  logically 
connected  with  the  foregoing,  and  is  therefore  often  spoken  of  as  having 
the  same  origin,  but  in  fact  has  a  very  different  history.  Its  basis  deserves 
a  particular  examination,  because  it  has  already  been  applied  in  some  of 
our  states,  and  in  the  Federal  courts,  in  a  form  requiring  an  express  stat- 
utory provision  to  warrant  the  conviction  for  any  crime,  and  of  course 
doing  away  with  common-law  crimes  altogether.    And  these  instances,  from 


294  APPENDIX. 

being  exceptional,  are  evidently  on  the  increase,  and  almost  certain  to 
constitute,  sooner  or  later,  the  general  rule ;  for  it  commends  itself  partic- 
ularly to  the  sense  of  justice  of  our  people,  and  their  desire  of  security, 
that  no  man  should  incur  criminal  punishment  for  an  act  not  expressly  and 
in  terms  forbidden  by  the  law.  It  is  the  logical  continuation  of  the  same 
feeling  which  overthrew  the  Star-Chamber,  and  made  its  very  name,  as  a 
court  of  criminal  equity,  synonymous  with  iniquity  and  oppression. 

The  maxim  is  found  in  all  the  civilian  collections,  under  the  following 
forms,  or  something  resembling  them:  Nulla  poena  sine  lege  (Fromelt, 
Regulae  Juris,  107)  ;  nulla  poena  sine  lege,  nulla  poena  sine  crimine,  nullum 
crimen  sine  poena  legali.  No  authority,  however,  is  cited  for  the  maxim, 
either  there  or  in  the  various  treatises  in  which  it  is  cited,  —  e.g.,  Feuer- 
bach,  Lehrbuch  des  peinlichen  Rechts.  (13th  ed.,  by  Mittermaier),  sec.  2, 
note  II. 

The  Canon  Law,  while  very  careful  to  limit  the  power  of  inflicting  a 
penalty  to  the  lawful  judge  (c.  4,  C.  33,  qu.  2,  Boehmer's  ed.,  I.,  990), 
nowhere  recognizes  any  such  law. 

Wilfrid,  bishop  of  York,  having  gone  to  Rome  to  be  tried  by  the  Pope, 
Agatho,  was  "acquitted  of  everything,  whether  specified  against  him  or 
not."    Bede,  Eccl.  Hist.,  Lib.  V.,  c.  19. 

So  an  absolution  was  granted  in  1383  to  Crusaders  "from  all  the  sins 
which  thou  dost  with  a  contrite  heart  confess,  or  wouldst  confess  if  thou 
didst  remember  them!"    Parliamentary  History,  Vol.  I.,  p.  316. 

Its  first  appearance  in  statutory  law,  so  far  as  I  have  been  able  to  find, 
is  in  the  criminal  code  of  the  Emperor  Joseph  II.  of  Germany,  promulgated 
January  15,  1787,  the  first  section  of  which  is  as  follows:  "Every  action 
contrary  to  law  is  not  a  criminal  offence,  or  a  capital  crime ;  and  no  action 
contrary  to  law  shall  be  considered  as  criminal,  but  such  as  shall  have 
been  determined  to  be  so  by  the  present  criminal  code."  The  Emperor's 
New  Code  of  Criminal  Laws.     Translated  by  an  officer.     Dublin:   1787. 

A  similar  provision  is  found  in  the  Prcuss.  Land-recht,  Till.  II.,  tit.  20, 
art.  9,  and  in  the  legislation  of  Bavaria,  Saxony,  and  Wurtemberg,  at  the 
beginning  of  each  code.  It  was  adopted  by  Napoleon  in  the  Code  Penale 
of  1810,  Art.  IV.,  in  the  following  terms:  "  Nulle  contravention,  mil  delit, 
mil  crime  ne  peuvent  etrc  punis  de  peines,  qui  n'etaient  pas  prononcees 
par  la  loi  avant  qu'ils  fussent  commis." 

Whence  was  this  maxim  derived?  Nothing  of  the  kind  is  to  be  found 
in  the  Roman  law,  or  the  works  of  the  Glossators.  The  texts  which  have, 
in  later  years,  been  quoted  as  authority  for  it,  fail  entirely  to  support  it; 


APPKNDIX.  2(J5 

and  nothing  is  clearer  than  that  the  power  of  the  judge  in  the  extra 
nana  judicia  of  the  Roman  imperial  law  (which,  as  is  well  known,  were 
the  prototypes  of  all  criminal  pro:-. -.lure  after  the  revival  of  that  law  in 
the  Middle  Ages)  was  utterly  inconsistent  with  any  such  principle.  The 
earliest  writer  accessible  to  us,  in  whom  anything  even  remotely  resem- 
bling the  maxima  quoted  above  Is  1 1  be  found,  is  Menochius,  born  1532, 

died  1607. 

We  find  the  rule  laid  down  by  Menochius  in  this  form :  Poenam  alicui 
nonesse  indicendam,  nisi  espresso  jure  cantum  sit.  De  arbitrariis  jndiciis, 
4,3;  cas.  27G,  1;  De  presumptionibus,  1,  5;  prsesumptio,  49.     He  speaks 

of  it  as  a  rule  explained  by  many  of  the  interpreters  of  his  time,  and  quoti  a 
as  authority  for  it,  Dig.  XL,  t.  7,  14,  §  14,  and  Nov.  2,  c.  o.  It  will  be  seen, 
on  reference  to  these  passages,  that  they  have  little  to  do  with  the  doc- 
trine referred  to  above.  It  is  evident  also  from  Menochius's  own  illustra- 
tions, that  the  maxim  given  by  him  was  more  frequently  referred  to  cases 
where  a  penalty  was  imposed  by  contract,  or  by  will,  than  to  those  of  the 
criminal  law.  He  mentions  a  dissentio  dominorum,  which  otherwise  has 
not  been  handed  down  to  our  times,  approving  the  opinion  of  Decius,  and 
the  doctors  generally,  against  that  of  Baldus,  that  a  woman  should  lose 
her  dower  for  a  kiss,  on  this  ground,  —  cum  nullo  jure  cautum  sit.  If  any 
of  our  readers  wish  to  investigate  the  controversy  further,  they  may  look 
at  the  gloss  in  rubri  C.  de  edendo,  II.,  t.  1.  But  what  is  more  to  the  point, 
he  quotes  a  statute  of  the  city  of  Pavia,  No.  G7 :  Quod  nullus  poena  cor- 
porali  possit  puniri,  nisi  statuto  caveatur;  and  one  of  Milan  to  the  same 
effect. 

Menochius  discusses  at  some  length  the  question  whether  these  statutes 
change  the  common  law,  —  e.g.,  if  a  particular  offence  is  punished  by  that 
law  with  corporal  punishment,  and  the  statute  provides  no  such  punish- 
ment against  it,  can  it  be  punished?  The  argument  on  both  sides  is  too 
long  to  quote  here,  but  is  strikingly  like  those  employed  to-day  in  the  states 
where  a  similar  question  lias  been  raised.  The  same  doctrine,  that  a  statute 
cannot  be  interpreted  to  alter  the  common  law,  unless  it  does  so  by  clear 
and  specilic  words,  is  answered  as  it  would  be  to-day:  Licet  statute  el 
constitutioncs  jam  relatse  non  corriganl  speciflce  jus  commune:  attamen 
cum  dicant,  neminem  esse  puniendum  poena  corporali,  nisi  legibus  ipsis 
municipalibus  cantum  sit:  necessario  Intelligimus  jus  commune  abrogari, 
alioqui  nihil  operarentur. 

Menochius  points  out  clearly  the  connection  between  this  doctrine  and 


296  APPENDIX. 

the  rule  of  favorable  interpretation  in  criminal  cases,  by  inferring  the 
latter  from  the  former.  Since  a  penalty  cannot  be  imposed,  unless  author- 
ized by  an  express  provision  of  the  law  (quoting  as  authority  the  passages 
already  referred  to),  the  manifest  presumption  arises  from  this  that,  in 
case  of  doubt,  the  milder  penalty  is  presumed  to  be  imposed  by  the  law 
or  the  judge,  since  in  such  cases  the  interpretation  must  be  very  strict. 
Hence  Alciatus  wrote  that  the  presumption  was  always  upon  that  side  by 
which  the  penalty  is  avoided.  After  illustrating  this  by  numerous  exam- 
ples, he  Anally  qualifies  it  thus :  This  presumption  has  no  place  when  the 
milder  punishment  would  encourage  crime,  or  be  substantial  impunity.  It 
is  the  intention  of  the  legislator  and  the  interest  of  the  state  that  crime 
should  be  punished,  and  therefore  criminal  laws  may  even  be  extended  by 
interpretation,  rather  than  that  crime  should  go  unpunished.  (In  pcenali- 
bus  admitti  extensionem,  ne  alioqui  delictum  remaneat  impunitum.)  And 
for  this  he  cites  Bartolus  and  other  authorities.  Menochius,  De  Prsesump., 
Lib.  V.,  prses.  49.  See  a  similar  opinion  of  Plowden,  p.  4G8,  quoted  ante, 
p.  89. 

Upon  the  present  acceptation  of  the  doctrine  in  Europe,  the  following 
quotation  from  Mittermaier  will  suffice:  "The  question  is  of  special 
importance  in  its  bearing  upon  the  boundaries  of  criminal  law.  If  we 
ask  whether  there  are  natural  crimes,  —  that  is,  crimes  the  culpability  of 
which  results  from  the  very  laws  of  human  reason,  so  that  they  must  be 
punished  by  every  people,  —  it  must  be  answered  in  the  affirmative.  Such 
are  the  delicto,  juris  gentium  of  the  Koman  law,  and  the  mala  in  se  of 
the  English.  But  it  is  a  different  question  whether  there  are  crimes 
which  the  judge  must  punish,  even  if  the  positive  law  of  the  land  imposes 
no  punishment  upon  them.  Especially  in  cases  where  there  is  a  complete 
criminal  code,  can  the  judge  punish  acts  which  he  regards  as  worthy  of 
punishment  on  general  principles,  though  no  warning  of  such  punishment 
is  given  by  the  positive  law?  This  question  must  be  answered  in  the 
negative.  All  the  newer  codes  recognize  the  doctrine,  that  no  act  can  be 
punished  judicially  upon  which  a  penalty  has  not  previously  been  imposed 
by  legislation.  [Citing  them  as  above.]  It  is  altogether  a  different  question, 
whether  in  Roman  law  the  judge  could  punish  without  a  previous  lex. 
This  to  be  answered  by  a  study  of  the  delicta  juris  gentium."  L.  42,  D. 
de  Verb.  Sign. ;  L.  38,  §  2,  D.  de  Leg.  Jul.  de  Adulter. 

The  doctrine  of  the  common  law  on  tins  topic  will  he  found  in  1  Bishop's 
Cr.  Law,  §  3G,  and  notes      So  far  as  the  jurisdiction  of  the  United  States 


APPENDIX.  297 

is  concerned,  the  doctrine  is  substantially  the  same  -with  that  of  the 
civilians,  although  the  reasons  given  for  it  are  not  entirely  the  same. 

"The  principle  that  the  legislative  intent  is  to  be  found,  if  possible,  in 
the  enactment  itself,  and  that  the  statutes  are  not  to  be  extended  by  con- 
struction to  cases  not  fairly  and  clearly  embraced  in  their  term-,  is  one  of 
great  importance  to  the  citizen.  The  courts  have  no  power  to  create 
offences;  but  if  by  latitudinarian  construction  they  construe  cases  not 
provided  for  to  be  within  legislative  enactments,  it  is  manifest  that  the 
safety  and  liberty  of  the  citizen  are  put  in  peril,  and  that  the  legislative 
domain  has  been  invaded.  Of  course,  an  enactment  is  not  to  be  frittered 
away  by  forced  constructions,  by  metaphysical  niceties,  or  mere  verbal 
and  sharp  criticism ;  nevertheless  the  doctrine  is  fundamental  in  English 
and  American  law,  that  there  can  be  no  constructive  offences ;  that  before 
a  man  can  be  punished,  his  case  must  be  plainly  and  unmistakably  within 
the  statute;  and  if  there  be  any  fair  doubt  whether  the  statute  embraces 
it,  that  doubt  is  to  be  resolved  in  favor  of  the  accused."  These  principles 
of  law  admit  of  no  dispute,  and  have  been  often  declared  by  the  highest 
courts,  and  by  no  tribunal  more  clearly  than  the  Supreme  Court  of  the 
United  States.  United  States  v.  Morris,  13  Pet.  464;  United  States  v. 
Wiltberger,  5  Wheat.  76;  United  Slates  v.  Sheldon,  2  Wheat.  114.  See 
also  Ferrit  v.  Atwill,  1  Blatchf.  151,  156;  Sedgw.  on  Stat.  &  Const.  Law, 
324,  326,  334;  1  Bishop's  Cr.  Law,  §j  134,  145;  Dillon,  J.,  in  United  States 
v.  Clayton,  2  Dill.  219  ;  1  Green's  Cr.  Rep.  439. 

In  the  jurisprudence  of  the  several  states  the  maxim  is  universally  recog- 
nized, but  the  meaning  attached  to  it  in  different  states  is  widely  different. 
Two  principal  classes  maybe  formed;  in  one  of  which  the  maxim  is  applied 
strictly,  and  no  act  can  be  punished  as  a  crime  unless  a  specific  statute 
has  characterized  it  as  such,  and  affixed  a  penalty.  For  illustrations  of 
this  doctrine,  see  Estes  v.  Carter,  10  Iowa,  400;  Allen  v.  The  State,  10  Ohio 
St.  287. 

In  the  other  and  larger  class,  the  maxim  is  applied  only  to  minor  ques- 
tions, and  the  existence  of  common-law  crimes  is  fully  recognized.  It  is 
held  that  the  officers  of  government  have  authority  derived  from  the  gen- 
eral rights  of  the  government,  without  any  statute  whatever  upon  the 
subject,  to  exercise  all  necessary  force  for  the  prevention  of  erim  \  either 
by  the  arrest  of  individuals  or  by  the  seizure  and  detention  of  the  instru- 
ments for  committing  crime.     Spalding  o.  Preston,  21  Yt.  ;>. 

In  both  classes  alike,  the  principle  is  held  to  require  the  most  explicit 
and  distinct  notice  to  the  person  charged,  of  the  charge  made  against  him. 


298  APPENDIX. 

The  plain  rule  of  the  common  law  is  that  no  man  shall  be  held  to  answer 
for  any  crims  or  offence  until  the  same  is  fully  and  plainly,  formally  and 
substantially,  made  known  to  him,  that  he  may  have  every  advantage  of 
previous  notice  in  making  his  defence,  both  upon  the  matter  of  fact  and 
of  law.  Per  Shaw,  C.  J.,  in  The  Commonwealth  v.  Child,  13  Pick.  198, 
200. 

This  plainly  intends  that  the  meaning  shall  be  evident  from  the  words 
themselves, — i.e.,  from  the  sense  they  convey  to  all  men  alike,  and  not 
from  any  extraneous  facts  which  would  put  a  peculiar  meaning  on  the 
words,  even  though  all  men,  knowing  such  facts,  would  derive  the  same 
peculiar  meaning  from  them.  Thus,  in  cases  of  libel,  it  has  been  held  that 
if  the  writing  is  such  that  every  man  would  put  the  same  construction 
upon  it,  by  understanding  something  not  expressed,  without  which  the 
writing  would  not  be  libellous,  in  such  case  that  thing  must  be  set  forth 
in  the  indictment,  in  order  that  the  jury  may  take  cognizance  of  it.  Rex 
17.  Home,  Cowp.  672,  GS3;  The  State  v.  Atkins,  42  Vt.  252;  The  State  v. 
Corbett,  13  R.  I.  91. 

The  rule  that  a  penal  statute  is  not  to  be  extended  by  analogy  to  cases 
not  within  the  letter  —  or,  in  our  phrase,  that  there  shall  be  no  equitable 
extension  of  such  a  statute  —  is  recognized  in  all  civilized  nations,  and  is 
much  insisted  on  by  the  civilians  and  canonists.  Its  reason  is  thus  stated 
by  one  of  the  most  authoritative  of  the  casuists.  After  stating  that  some 
held  to  an  analogical  extension  of  penal  laws,  —  quia,  ut  dicuiit,  etiam  lex 
pcenalis  extendi  debet  de  casu  ad  casum  quando  currit  eadem  ratio,  et 
crimen  est  gravioris  malitise,  —  he  thus  refutes  them,  and  at  the  same 
time  gives  the  reason  of  equitable  extension  in  other  cases:  Quia  ratio 
primEe  sententiae  currit  in  lege  prEeceptiva,  quae  omnino  pendet  a  ratione 
legis;  non  vero  currit  in  lege  pcenali,  quae  penclet  non  solum  a  ratione 
legis  sed  eteam  a  voluntate  legislatoris ;  ideoque  in  ea  non  valet  argu- 
mentum  a  pari.  De  Ligorio,  Theologia  Moralis,  Tom.  I.,  p.  451,  ed. 
Mediolaui,  1849. 

The  law  must  specify  clearly  what  acts  are  forbidden ;  but  it  is  a  mis- 
taken exaggeration  of  the  need  of  clearness  that  leads  to  the  anxious 
specification  of  things  merely  permitted,  —  e.g.,  of  the  extent  to  which  a 
parent's  power  may  be  exercised,  or  of  the  right  of  asylum  granted  to  one 
in  his  own  house.  Such  explicit  declaration  of  what  is  merely  allowable 
incurs  the  danger  that  men  may  be  led  thereby  to  claim  as  a  positive  right 
what  has  been  left  to  them  only  because  it  was  impossible  practically  to 
prevent  it.    Trendelenburg,  Naturrecht,  §  172. 


APPENDIX.  209 

NOTE    K. 

ON  THE  CONSTRUCTION  OF  CONTRACTS,  ETC. 

Construction  is  the  drawing  an  inference  by  the  aid  of  reason  as  to  the 
intent  of  an  instrument,  from  given  circumstances,  upon  principles  deduced 
from  men's  general  motives,  conduct,  and  actions.1 

The  intent  of  the  parties  to  an  agreement  or  contract  is  to  be  gathered 
from  external  signs  and  actions;  for,  whatever  difference  there  maybe 
between  a  man's  internal  sentiments  and  external  expression,  he  must,  in 
bis  ordinary  transactions  with  mankind,  be  concluded  to  use  signs  accord. 
ing  to  their  common  acceptation;  for  there  could  be  no  such  thing  as 
an  obligation,  if  a  man  might  affix  what  interpretation  he  pleased  to 
his  signs,  and  pretend  that  he  meant  to  use  them  different  from  their 
received  signification.  Therefore  he  in  whose  favor  an  obligation  is 
incurred  has  a  right  to  compel  him  from  whom  it  is  due  to  perforin  it 
in  that  sense  which  the  ordinary  interpretation  of  the  signs  made  use  of 
import.'2 

The  signs  of  the  intentions  of  men  are  of  two  sorts,  namely,  words  and 
actions. 

As  to  positive  words.  The  rule  seems  to  be  that,  unless  there  be  the 
most  decisive  reasons  which  lead  us  to  conjecture  the  intent  was  other- 
wise, they  are  to  be  understood  in  their  proper  and  most  known  significa- 
tion. Not  the  grammatical  one,  which  regards  the  etymology  and  original 
of  them,  but  that  which  is  vulgar  and  most  in  use;  for  use  is  the  judge, 
the  law,  and  the  rule  of  speech. 

But  when  words  are  equivocal,  or  sentences  are  ambiguous,  and  capable 
of  several  significations,  conjectures  are  necessarily  resorted  to  in  order 
to  discover  the  true  meaning  of  the  parties ;  and  such  conjectures  may  be 
made  from  three  sources,  — the  subject,  the  effects,  and  the  circum- 
stances. 

I.  First,  it  is  a  rule  that  words  are  to  be  understood  according  to  the 
subject  of  them,  which  is  thus  expressed  by  the  civilians:  Verba  generalia 
restringuntur,  ad  habilitatem  personae,  vel  ad  aptitudinem  rei. 

II.  "To  give  effect  to  the  intent,'    the  construction  of  a  contract,  as  to 


i  Powell  on  Con.,  p.  223. 
2  Ibid.,  p.  225. 


300  APPENDIX. 

the  manner  of  its  operation,  will  vary  according  to  accidental  circum- 
stances affecting  the  state  of  the  subject  contracted  about,  after  the 
contract  entered  into  and  before  its  completion. 

III.  So,  ut  res  magis  valeat  quam  pereat,  the  construction  of  the  same 
kind  of  contract,  as  to  the  manner  of  its  operation,  will  vary  in  different 
cases,  according  to  the  manner  in  which  it  is  carried  into  effect. 

Secondly,  the  effect  and  consequence  that  will  follow  from  accepting 
words  in  their  ordinary  import  frequently  leads  us  to  a  necessary  con- 
clusion that  the  genuine  meaning  of  the  person  using  them  is  different 
from  their  common  acceptation,  —  as  where  words,  if  taken  according  to 
their  ordinary  sense,  will  render  a  contract  ineffective  and  frivolous.  In 
such  case,  we  may  a  little  deviate  from  their  received  sense  to  prevent  this 
inconvenience;  for,  verba  aliquid  operari  debent,  et  cum  effectu  sunt 
accepienda. 

Thirdly,  the  actions  or  circumstances  attending  a  transaction  may  be 
called  in  aid  to  explain  the  nature  of  dealings  between  parties,  where 
otherwise  an  ambiguity  hangs  over  them. 

In  some  cases,  the  ordinary  import  of  words  may  be  restrained. 

First,  where  there  is  an  original  defect  in  the  will  of  the  speaker,  so  that 
it  is  not  coextensive  with  his  words. 

And,  f-econdly,  where  there  is  some  collateral  accident  inconsistent  with 
the  speaker's  design. 

Under  the  first  of  these  distinctions  we  may  comprise  all  cases  where 
there  is  good  reason  to  conclude  that  the  person  who  spoke  was  aware  of 
certain  things,  and  yet  did  not  intend  to  include  them  in  the  general  terms 
he  used,  though  he  did  not  expressly  except  them,  because  he  supposed 
such  an  exception  clear  in  itself. 

The  principle  in  the  second  instance  is,  that  the  matter  in  hand  is  always 
presumed  to  be  in  the  mind  and  thoughts  of  the  speaker,  though  his  words 
seem  to  admit  a  larger  sense ;  and,  therefore,  the  generality  of  the  words 
used  shall  be  restrained  by  the  particular  occasion. 

Secondly,  an  original  defect  of  the  will  may  be  discovered  where  there 
is  some  collateral  accident  falls  out  inconsistent  with  the  speaker's  design ; 
as  in  a  case  where  something  happens  that  could  not  be  foreseen,  but  is  such 
as,  if  it  had  come  into  the  mind  of  him  who  spoke,  he  would  have  excepted 
it.  But  if  there  be  in  the  tenns  of  a  contract  any  obscurity  or  dubious- 
ness, which  cannot  be  cleared  up  by  the  intention  of  the  contracting  par- 
ties, or  any  other  circumstance,  and  all  other  rules  of  exposition  of  words 


APPENDIX.  301 

fail,  then  the  construction  ought  to  be  against  him  who  ought  to  have 
explained  himself  OT  made  the  other  have  delivered  himself  fully.  On  this 
rule  of  construction  the  law  of  England  agrees  with  the  Roman  law,  where- 
in it  was  a  maxim  that  all  obscurities  and  ambiguities  in  a  bargain  oi  - 
or  letting  must  be  interpreted  against  the  seller  or  landlord.  In  this 
respect  the  determination  of  the  common  law  of  England  and  the  Roman 
law  are,  in  some  instances,  in  opposition  to  the  nature  of  tiling ;  for  if 
the  thing  contracted  about  be  burdensome  to  the  party  whose  words  are 
to  be  expounded,  the  interpretation,  to  be  agreeable  to  the  intent,  as  the 
latter  must  be  presumed  from  the  nature  of  things,  ought  to  be  favorable 
to  him ;  for  ever}'  one  seeks  his  own  advantage,  and  consequently  engages 
himself  to  as  little  inconvenience  as  possible;  whereas,  according  to  the 
construction  alluded  to,  he  is  presumed  to  have  bound  himself  as  strictly 
as  the  words  in  their  largest  sense  will  effect.  Therefore  perhaps  we 
should  come  nearer  the  truth  if  we  were  to  hold  that  the  contracting 
party  for  whose  benefit  the  agreement  is  burdensome  to  the  other  is  he 
who  should  either  explain  himself,  or  make  the  other  explain  himself,  with 
all  the  clearness  necessary  to  prevent  ambiguity  or  obscurity.  Therefore 
the  construction  should  always  go  against  him. 

In  some  instances  construction  is,  in  the  law  of  England,  made  according 
to  the  rule  last  mentioned ;  that  is,  where  the  contract  or  agreement  con- 
tains something  in  its  nature  odious;  of  which  kind  are  all  contracts  that 
carry  a  penalty  with  them,  or  lay  the  chaig  ■  n  on?  party  only,  or  on  one 
more  than  another. 

Upon  this  principle,  words  or  sentences  in  the  condition  of  a  bond, 
which,  considered  simply  in  their  own  nature,  are  equivocal  or  ambiguous, 
shall  generally,  in  respect  of  the  object  of  the  condition,  be  taken  in  ease 
and  favor  of  the  obligor;  the  reason  of  which  seems  to  be,  that  they  are 
inserted  for  his  advantage,  and  to  discharge  him  from  a  penalty. 

Upon  this  principle  it  has  been  determined  that  where  the  condition  of  a 
bond  consists  of  two  parts  in  the  disjunctive,  and  both  are  possible  at  the 
time  of  the  bond  made,  and  afterward  one  of  them  becomes  impossible  by 
the  act  of  God,  the  obligor  is  not  bound  to  perforin  the  other  part. 

Another  exception  to  the  rule  of  accepting  ambiguous  words  most 
strongly  against  the  speakers  is,  where  such  construction  will  work  a 
wrong  to  others. 

Subject  to  the  above  observation,  words  arc  to  be  understood  in  the 
most  comprehensive  sense  in  which  they  are  generally  accepted,  —  as  the 
masculine  is  to  be  understood  as  including  both  genders. 


302  APPENDIX. 

And  an  indefinite  expression  shall  be  understood  universally,  unless 
there  be  otherwise  some  reason  to  restrain  it. 

If  a  man  speak  in  legal  language,  his  words  shall  be  taken  in  their  most 
comprehensive  signification ;  they  include  whatever  they  signify  in  that 
sense  which  the  law  has  imposed  upon  them. 

And  in  expounding  contracts  and  agreements,  that  construction  is  made 
of  them  which  is  consonant  to  the  general  intent,  as  it  appears  in  the  con- 
text. 

Words  may  be  transposed  to  give  effect  to  the  intent,  where  that  is 
evident. 

The  executors  of  the  contracting  parties  are  implied  in  themselves,  and 
bound  without  naming,  if,  from  the  nature  of  the  contract,  it  appear  that 
the  parties  so  intended. 

[When  the  reference  to  this  note  was  made,  at  page  152  of  the  text,  it 
was  the  editor's  intention  to  add  here  a  full  collection  of  recent  American 
cases  illustrating  the  construction  of  contracts,  wills,  deeds,  etc.,  classified 
according  to  the  excellent  arrangement  of  the  subject  given  by  Mr.  Powell. 
Tor  this  purpose  he  had  made  full  abstracts  of  nearly  four  hundred  care- 
fully selected  cases.  But,  upon  consultation  with  the  publishers,  he  found 
that  he  had  already  exceeded  the  limits  within  which  they  had  expected  to 
keep  the  size  of  the  volume,  and  that  these  cases,  and  much  else,  must  be 
omitted.  To  print  a  mere  list  of  the  cases  would  be  of  little  service,  as 
our  libraries  are  already  full  to  repletion  of  digests,  indexes,  and  treatises, 
the  object  of  which  is  to  refer  to  them.  This  work  makes  no  attempt  to 
be  a  guide  to  the  adjudged  cases  for  the  use  of  practitioners;  and  the 
editor  is  less  reluctant  to  omit  the  matter  mentioned  above,  because  it  is 
not  an  indispensable  part  of  his  proposed  task  as  stated  in  his  preface.] 


NOTE    L. 

ON  LEGAL   DEFINITIONS. 

The  logical  rules  of  definition,  especially  that  which  requires  it  to  con- 
tain the  next  higher  genus  and  the  specific  difference,  should  be  strictly 
observed  in  law ;  for,  if  the  definition  be  too  wide,  it  will  cover  relations 
and  acts  that  the  law  intended  to  exclude;  if,  on  the  other  hand,  too 
narrow,  it  will  permit  such  to  escape  which  it  was  the  purpose  of  the  law 


APPENDIX.  303 

to  regulate.  Where  the  genus  and  the  difference  suggest  each  other,  and 
form  a  single  idea,  we  have  a  proper  legal  conception  from  which  we  may 
reason  deductively. 

Definitions  are  of  the  utmost  importance  and  greatest  influence  in  law, 
because  each  one  forms  the  basis  of  innumerable  snbsnmptions,  and  either 
restricts  or  enlarges  the  application  of  the  law  to  actual  cases.  The  very 
name  Implies  that  they  form  the  bounds  of  our  conceptions;  and,  in  law, 
they  thus  give  shape  to  our  legal  relations  and  institutions,  and  have 
formative  power.  The  ancient  and  oft-quoted  rule  that  all  definition  in 
law  is  perilous,  for  one  can  rarely  be  found  that  may  not  be  overthrown 
(omnis  definitio  in  jure  civili  periculosa:  parum  est  enim  ut  non  sub- 
vert'! possit.  L.  202,  D.  de  regulis  juris,  L.  17),  recognizes  the  difficulty 
of  fixing  the  ever-changing  relations  of  actual  life  in  sharply  defined 
phrases,  expressing  the  true  law  of  their  formation,  but  it  is  not  intended 
to  dispute  or  underrate  the  constant  need  of  the  process.  Correct  defini- 
tions are  the  logical  guaranties  of  all  certainty  in  the  law,  —  the  guardians 
of  its  provisions.     Trendelenburg,  Naturrecht,  §  71. 

The  requirement  that  a  definition  shall  be  composed  of  the  genus  and 
specific  difference  of  course  implies  that  the  matter  or  word  to  be  defined 
belongs  to  a  science  capable  of  exact  and  complete  classification,  and 
already  classified,  so  that  each  term  in  it  may  be  referred  to  a  distinct 
genus,  class,  or  order.  When  the  rule  was  formed,  tins  was  held  to  be 
the  case  with  all  sciences,  —  with  the  moral  sciences  even  more  truly  than 
with  the  physical  ones.  But  modern  thought  has  abandoned  most  of  the 
schemes  then  adopted ;  and  there  are  very  few  provinces  of  ethics  or  law 
in  which  a  real  definition  can  now  be  framed  in  a  strictly  logical  form, 
with  any  prospect  of  general  acceptance,  as  the  true  and  necessary  expres- 
sion of  an  order  existing  in  the  nature  of  the  things  defined. 

We  are  therefore  obliged,  in  most  cases,  to  describe  rather  than  define 
a  legal  term,  by  enumerating  a  greater  or  less  number  of  characteristic 
marks,  by  which  its  identity  may  always  be  determined,  though  its  exact 
relation  to  other  conceptions  or  terms  may  not  be  defined.  In  logical 
language,  we  employ  consecutiva  propria  (constant  properties),  instead  of 
the  constitutivum,  or  cause,  which  makes  the  thing  defined  to  be  what  it 
is;  and,  logically  imperfect  as  the  process  may  be,  it  is  much  safer  and 
better,  than  the  attempt  to  produce  a  definition  perfect  in  form,  but  not 
answering  to  the  true  meaning  of  the  term.  The  latter  process  always 
leads  to  confusion  of  thought  and  mistaken  inferences,  while  the  former 


304  APPENDIX. 

is  often  practically  useful.  It  fixes  the  sense  of  a  term  for  the  case  in 
hand ;  and  that  is  usually  sufficient,  in  our  present  modes  of  forensic  and 
judicial  argument. 

The  distinction  between  the  two  processes,  of  definition  and  description, 
is  well  illustrated  in  the  following  passages:  — 

Pra3sumptio  juris  dicitur  quia  a  lege  introducta  est:  et  de  jure  quia 
super  tali  prsesumptione  lex  inducit  firmum  jus  et  habet  earn  pro  veritate. 
Menochius,  de  Prsesump.,  Lib.  I.,  qu.  3,  18.  Meuochius  discusses  these  at 
length  in  qu.  4,  et  seq. :  "Baldus  banc  prsesumptionem  ita  definit  vel  de- 
scribit  potius  ut  sit  animi  legislators  applicatio  ad  verisimile,  confirmata 
sanctione.  Verum  plenius  et  melius  idem  ita:  est  status  a  jure  promul- 
gatas  ex  iudubia  conjectura.  Cum  aliquibus  positis  verisimiliter  atque 
ita  probabiliter  non  autem  necessario  sequitur  quod  intendimus.  Ita 
Fabius :  Hauc  ita  diffinit  vel  verius  describit  Baldus.  Est  animi  legisla- 
tions ad  verisimile  applicatio  onus  probandi  transfereus." 

So,  Leyser  (Opp.  XIII.,  19,  De  Assentatoribus,  §  IV.),  says:  Progredi- 
mur  ad  definitionem  assentationis,  aut  potius  descriptionem.  Accurata 
enim  et  secundum  regulas  ab  Aristotele  prsescriptas  confecta  a  Jcto  qui 
more  majorum  res  magis  quam  verba  spectat  exigenda  non  est. 

It  should  be  added,  however,  that  there  is  not  the  same  difficulty  in 
verbal  definitions,  especially  when  employed  by  a  writer  who  has  in  some 
degree  the  power  of  selecting  and  arranging  his  own  terms,  and  limiting 
their  extent.  There  seems  to  be  no  excuse  for  the  utter  disregard  of  all 
logical  rules  of  definition,  common  among  our  recent  law-writers.  What 
is  commonly  offered  under  the  name  of  a  definition  is  rarely  more  than  a 
description,  and  too  often  a  loose  and  inaccurate  one  at  that.  Not  infre- 
quently, a  definition  unobjectionable  on  its  face  is  followed  immediately 
by  matter  utterly  inconsistent  with  it :  as  when  a  bailment  is  defined  as  a 
contract,  and  the  definition  illustrated  by  cases  of  bailment  that  are  not 
contracts,  for  want  of  a  consideration,  and  other  cases  of  bailment  sound- 
ing in  tort.  Such  definitions  do  less  harm  than  they  otherwise  would, 
because  their  defects  are  so  gross  that  the  habit  of  arguing  from  them  has 
almost  entirely  ceased.  Judges  and  practitioners  have  come  to  disregard 
them  almost  entirely.  It  is  only  the  teacher  of  law  who  can  appreciate 
the  mischief  they  do,  in  confusing  the  learner's  mind,  and  destroying  his 
confidence  in  the  theoretical  parts  of  law.  They  do  him  good  service,  in- 
deed, upon  examination,  and  are  painfully  learned  by  rote  for  that  use. 
But  after  this,  it  never  seems  even  to  occur  to  him  that  they  are  meant  for 


APPENDIX. 

any  other  purpose,  unless  he  becomes  in  turn  an  examiner,  and  brushes  up 
his  recollection  of  a  few  of  them,  that  he  may  test  thereby  the  know! 
of  a  new  generation.  Thai  the  whole  doctrine  on  the  subject  in  question 
may  have  been  changed  in  the  meantime,  by  new  decisions  or  legislation, 
does  not  make  them  less  useful.  Neither  the  examiner  nor  the  legal  author 
seems  to  think  lor  a  moment  that  the  definition  has  any  connection  what- 
ever witli  the  actual  state  of  the  law  comprehended  under  it.  A  common 
defect  in  books  recently  written  for  students  is  the  use  of  vague  general 
terms,  ami  inexacl  colloquial  definitions, —apparently  with  the  idea  that 
these  will  be  more  easily  understood  by  the  beginner,  than  the  exact, 
specific  language  in  which  legal  rules  have  been  laid  down  by  the  courts. 
(I  do  not  mean  that  exceptions  and  qualifications  are  omitted,  to  give  only 
the  broad  rule  of  general  application;  for  this,  if  done  with  discretion,  is  a 
very  useful  and  even  aecessary  process.)  There  could  hardly  be  a  greater 
mistake.  The  beginner  needs,  above  all  things,  the  very  qualities  that  are 
here  systematically  disregarded.  The  law  he  learns  should  be  such  as 
he  may  treasure  up  in  his  mind,  and  find  useful  to  the  very  end  of  his  life. 
And  this  for  two  reasons:  (1)  that  it  will  most  probably  be  so  treasured, 
be  it  good  or  bad,  from  the  advantage  it  has  in  time;  (2)  but  still  more 
important,  because  he  is  not  yet  prepared  to  apply  general  truths,  and 
judge  for  himself  as  to  the  applicability  of  broad  statements.  He  is  only 
confused,  not  instructed.  Law  that  cannot  be  stated  with  precision  will 
do  him  now  more  harm  than  good. 

The  definitions  of  the  Roman  law  are  highly  praised  by  the  civilians, 
who  find  in  them  a  constant  effort  at  clear  distinction  of  legal  ideas. 
Trendelenburg  (p.  169)  gives,  as  example,  the  definition  of  morbus  and 
vitium,  in  L.  1,  D.  XXI.,  1.     Compare  Gellius,4,  2. 

Mr.  Phillimore,  in  his  Principles  and  Maxims  of  Jurisprudence  (p.  371), 
selects  also  the  following:  L.  GO,  D.  XLII.,  1;  L.  1,  D.  IV.,  3;  L.  2i6, 
D.  L.,  16;  L.  12,  D.  XXXIII.,  7;  and  L.  51,  D.  L1II.,  3. 


NOTE     M. 

ON  WRITTEN   AND   UNWRITTEN   CONSTITUTIONS. 
The  paramount  importance  of  written-  constitutions  in  our  American 
systems  of  government  has  given  to  their  construction  an  amount  of  atten- 
tion and  study  far  greater  thau  that  which  has  been  given,  either  in  Eug- 

20 


306  APPENDIX. 

land  or  America,  to  the  interpretation  and  construction  of  other  forms  of 
law.    Very  little  could  be  said  here,  on  that  topic,  that  has  not  already  been 
better  said  in  Judge  Cooley's  excellent  work  on  Constitutional  Limita- 
tions, and  the  other  treatises  on  the  topic.     In  Note  A,  on  the  Bibliography 
of  Interpretation,  I  have  mentioned  only  such  as  discussed  the  theory  of 
Interpretation.     The  works  that  simply  interpret,  without  entering  more 
than  incidentally  into  the  rationale  of  the  process,  are  very  numerous. 
Judse  Story's  Commentaries  on  the  Constitution  of  the  United  States 
(which  has  also  been  edited  by  Judge  Cooley)  stand    at  the  head  of  these 
in  popularity.    The  Federalist  still  maintains  its  place  as  an  almost  authen- 
tica  interpretatio.    Two  other  works  of  inferior  value  to  this,  but  only  to 
this,  are  now  undeservedly  neglected.     I  mean  Tucker's  Blackstone  and 
Judge  James  Wilson's  Lectures  on  Law,  delivered  in  the  College  of  Phila- 
delphia in  the  years  1790  and  1791.    I  mention  these  two  together,  because 
they  may  serve  as  types  of  the  two  original  schools  of  constitutional  con- 
struction.    The   strong  state-rights  theory  of  the  former  work  is  well 
known  by  tradition,  though  the  book  itself  is  rarely  seen,  at  least  in  the 
Northern  States.    Judge  Wilson's  works  have  also  been  long  out  of  print, 
and  even  his  name  is  less  familiar  to  our  contemporaries  than  his  services 
to  the  country  deserve.     It  shares  with  five  others  — four  of  the  six  being 
from  Pennsylvania  — the  honor  of  being  appended  both  to  the  Declaration 
of  Independence  and  the  Federal  Constitution,  and  is  found  in  the  roll  of 
associate  justices  of  the  United   States   Supreme   Court,  where  Judge 
Wilson  sat  from  its  first  organization  until  his  death,  in  179S,  when  he 
was  succeeded  by  Bushrod  Washington.    Judge  Wilson's  style  is  ornate 
and  redundant,  and  his  theory  of  law,  like  that  of  most  of  his  contem- 
poraries, lacks  precision  and  positiveness,  but  his  writings  deserve  study 
as  a  valuable  contemporary  exposition  of  our  form  of  government.     I 
have  referred  to  them  more  particularly  in  Note  D,  ante. 

The  number  of  brief  treatises  issued  since  the  Rebellion  is  very  great, 
and  they  vary  widely  in  merit,  and  in  their  views.  Prof.  Pomeroy's 
Introduction  to  Constitutional  Law  is  a  convenient  manual  for  students, 
but  ought  not  to  be  used  without  a  warning  against  the  extreme  central- 
izing doctrine  it  contains,  reducing  the  states  to  a  relation  with  the  Fed- 
eral government  like  that  which  its  counties  hold  to  each  state.  It  also 
maintains  (see  §  99)  a  doctrine  which  I  do  not  remember  to  have  seen 
elsewhere :  that  there  is  a  common  law  of  the  Union,  the  supremacy  of 
which  over  the  state  laws  and  constitutions  is  declared  by  the  Federal 


APPENDIX.  307 

Constitution,  Art.  VI.  Another  work  of  value,  and  almost  alone  of 
its  kind,  is  The  Constitutional  Convention,  its  Bistory,  Powers,  and 
Modes  of  Proceeding,  by  Hon.  John  A.  Jameson.  The  published  debates 
of  a  large  number  of  constitutional  conventions  contain  much  matter  that 

would  be  instructive,  if  it  could  in  some  way  be  digested,  or  at  least 
indexed,  and  the  wheat  distinguished  from  the  immense  profusion  of 
chaff  which  most  of  these  bulky  volumes  contain. 

The  principles  which  govern  the  interpretation  of  written  constitutions 
do  not  differ  materially  from  those  of  other  written  law;  but  some  embar- 
rassing questions,  on  which  there  has  been  no  little  fluctuation  of  deci- 
sions, seem  to  have  grown  out  of  the  relation  between  the  written  and 
the  unwritten  constitutions.  Some  judges,  more  familiar,  no  doubt,  with 
the  practical  effect  of  their  rulings  upon  suitors'  interests,  than  with  the 
theoretical  and  historical  antecedents  upon  which  they  rest,  have  gone  so 
far  as  to  deny  altogether  the  existence  of  unwritten  constitutions  in 
America!  "  I  think  the  doctrine  that  we  have  an  unwritten  constitution, 
upon  which  courts  may  plant  themselves  to  overturn  and  annul  an  act  of 
the  legislature,  is  unsound,  without  precedent,  and  dangerous."  Per 
Cole,  J.,  in  Hanson  v.  Vernon,  27  Iowa,  28,  78.  This  opinion  was,  indeed, 
a  dissenting  one,  but  the  author  of  it  was  also  one  of  the  victorious  ma- 
jority who  overruled  it  in  Stewart  v.  Supervisors  of  Polk  Co.,  30  Iowa,  !>, 
and  McGregor  &  S.  C.  R.  II.  Co.  v.  Birdsall,  30  Iowa,  235.  The  three  cases, 
taken  together,  are  worth  careful  reading,  especially  for  any  one  who  is 
familiar  with  the  extra-judicial  history  of  the  question  of  taxation  in  aid 
of  railroads. 

It  can  hardly  be  matter  for  surprise  that  those  whose  knowledge  of  the 
law  is  founded  solely  on  the  legal  literature  of  the  day  should  fall  iuto  the 
error  of  expecting  to  find  the  existence  of  an  unwritten  constitution 
dependent  upon  recent  precedents.  The  distinction  between  written  and 
unwritten  constitutions  has  been  brought  out  so  sharply  by  the  contrasts 
of  American  and  English  law,  that  the  connection  between  them  has  been 
thrown  quite  into  the  shade.  The  language  of  some  of  our  ablest  treatises 
has  been  susceptible  of  misconstruction  on  this  point.  The  relative  advan- 
tages of  written  and  unwritten  constitutions  have  been  discussed  as  if  there 
might  be  a  choice  between  them ;  as  if  the  written  constitution  superseded 
or  prevented  the  unwritten  one,  or  could  be  adopted  without  the  previous 
existence  of  an  unwritten  one.  See,  for  illustration,  Jamesons  Constitu- 
tional Conventions,  §§  63,  74-S3;  Pomeroy's  Municipal  Law,  §  352  et  seq. 


308  APPENDIX. 

In  this  connection  the  editor  ventures  to  refer  to  an  article  on  Constitu- 
tional Limitations  in  3  Western  Jurist,  65  (April,  1869),  for  remarks  on  this 
point,  that  space  will  not  permit  him  to  repeat  here. 

No  truth  can  be  clearer  to  the  student  of  history  and  law  than  that  a 
written  constitution  of  any  value  always  presupposes  the  existence  of  au 
unwritten  one.  To  use  Judge  Jameson's  phrase,  the  constitution  as  an 
objective  fact  must  exist,  before  the  constitution  as  an  instrument  of  evi- 
dence can  have  any  value.  The  worthlessness  of  written  constitutions 
that  have  not  unwritten  ones  beneath  and  behiud  them,  is  oue  of  the  most 
frequently  recurring  lessons  of  the  nineteeuth  century.  Dr.  Lieber  has 
pointed  out  the  distinction  of  enacted  and  cumulative  constitutions 
(Civil  Liberty,  3d  ed.,  by  President  Woolsey,  p.  162,  note),  but  speaks  of 
the  former  as  if  they  were  merely  due  to  "the  positive  enactment  of  the 
whole  at  one  time."  He  has  shown  elsewhere  too  clearly  his  sense  of 
the  relative  value  of  the  two  forms  to  be  misunderstood ;  but  this  hasty 
setting  up  of  one  against  the  other  accounts  for  many  of  the  misconcep- 
tions and  false  arguments  found  in  newspapers,  and  even  in  courts  of  jus- 
tice, on  the  subject. 

It  would  hardly  be  an  exaggeration  to  say  that  a  modern  civilized  state 
could  not  exist  without  an  unwritten  or  cumulative  constitution,  such  as 
Austin  has  described  in  the  following  passage :  — 

"In  every,  or  almost  every,  independent  political  society  there  are  prin- 
ciples or  maxims  which  the  sovereign  habitually  observes,  and  which  the 
bulk  of  the  society,  or  the  bulk  of  its  influential  members,  regard  with  feel- 
ings of  approbation."     Lectures  ou  Jurisprudence,  I.,  p.  273. 

In  this  sense  the  constitution  may  be  monarchic,  or  democratic,  or  aris- 
tocratic, and  may  give  more  or  less  security  to  the  subjects.  It  denotes 
merely  the  permanence  and  moral  power  of  certain  institutions  or  maxims 
of  government,  etc.,  regarded  as  having  peculiar  claims  on  the  respect 
and  obedience  of  all,  on  the  legislature  not  less  and  no  more  than  on  the 
people  or  the  executive. 

But  inasmuch  as  such  a  constitution  is  particularly  valuable  when 
regarded  as  protecting  the  subject  from  abuse  of  power  in  the  sovereign, 
or  from  arbitrary  changes  of  the  law,  it  has  become  usual  in  modern  juris- 
prudence to  confine  the  term  "constitutional  government"  "to  those 
whose  fundamental  rules  or  maxims  not  only  locate  the  sovereign  power 
in  individuals  chosen  or  designated  in  some  prescribed  manner,  but  also 
define  the  limits  of  its  exercise,  so  as  to  protect  individual  rights,  and  shield 


APPENDIX.  309 

them  against  the  assumption  of  arbitrary  power.  The  mere  grant  of  a 
constitution  does  not  make  the  government  a  constitutional  one  until  the 
monarch  is  deprived  of  power  to  set  it  aside  at  will."  Cooley's  Consti- 
tutional Limitations,  p.  3,  and  oote. 

The  marks  of  such  a  constitution  are  said  by  Robert  von  Moid,  one  of 
the  most  eminent  of  modern  European  publicists,  to  be  these:  1.  That 
the  entire  power  of  the  state  is  administered  according  to  law,  and  for 
legal  objects,  by  an  executive  cither  monarchical  or  chosen  for  a  definite 
period.  2.  That  all  powers  and  rights  involved  in  the  administration 
are  exactly  defined.  3.  That  all  claims  of  the  citizens,  either  as  a  body 
or  as  individuals  in  the  state,  should  be  determined  and  equalized. 
4.  And  secured  by  appropriate  means;  especially  by  a  body  of  citizens 
convened  for  that  purpose.  Geschichte  nnd  Literatur  der  Staatswissen- 
schaften.    Erlangen,  1855.     I.,  p.  268. 

Some  of  these  seem  to  an  American  to  be  marks  of  a  free  rather  than  of 
a  constitutional  government.  But  the  difference  is  unimportant  ;  since  a 
free  government  can  only  be  permanent  by  means  of  a  constitution,  and  a 
constitution  is  chiefly  of  value  as  it  sustains  freedom.  That  constitu- 
tional government  in  this  sense  existed  in  England  and  America  long 
before  the  first  reduction  of  the  constitution  of  any  state  to  writing,  is  too 
familiar  a  matter  of  history  to  be  proved  here.  It  maybe  worth  while, 
however,  to  show  that  not  only  the  theory  but  the  name  was  then  accepted. 

The  General  Assembly  of  the  Colony  of  Rhode  Island,  in  October,  1749, 
appointed  a  committee  "to  prepare  a  bill  for  introducing  into  this  colony 
such  of  the  statutes  of  England  as  are  agreeable  to  the  constitution." 
Their  report  was  made  and  the  statutes  adopted  in  the  following  year. 
See  note  to  Potter  v.  Thornton,  7  R.  1.  262.  It  was  in  the  same  state,  and 
long  before  it  had  a  written  constitution,  that  the  first  legislative  act  was 
declared  unconstitutional.  Trevett  r.  Weeden,  stated  in  Cooley's  (oust. 
Lim.,  p.  26,  note.  Rhode  Island  had  no  written  constitution  until  1842, 
more  than  fifty  years  after  it  became  a  member  of  the  Union.  The  same 
was  the  case  with  Connecticut  until  1818.  Were  these  state-  not  consti- 
tutional governments? 

The  case  of  Trevett  v.  Weeden  has  a  particular  interest  as  showing  that 
convtiiuiioii.il  limitations  upon  legislative  power  do  not  necessarily  pre- 
suppose a  written  constitution,  but  may  be  recognized  and  enforced  by  the 
courts  even  when  the  " higher  law "  is  an  unwritten  one.  All  the  recent 
cases  which  state,  as  a  ground  for  holding  law-  unconstitutional,  the  fact 


310  APPENDIX. 

that  the  legislature  have  assumed  power  not  truly  legislative  in  its  character, 
prove  the  same  thing ;  for  certainly  it  is  to  the  unwritten  constitution,  not 
to  the  written  one,  that  we  must  go  to  learn  what  power  is  legislative.  It 
may  not  make  much  difference  whether  we  recognize  formally  the  exist- 
ence of  an  unwritten  constitution  here,  or  say  that  intepretation  gave  us 
the  meaning  of  the  term.  The  result  in  either  case  is  the  same:  that  we 
have  a  binding  limitation  upon  legislative  power  not  contained  in  the 
words  of  the  written  constitution. 

At  the  same  time,  I  do  not  mean  to  question  the  common  theory  that 
the  unwritten  constitution  has  for  the  most  part  a  moral  and  not  a  legal 
force.  It  appeals  to  the  conscience  of  the  legislator  or  the  citizen,  and 
does  not  compel  him.  While  the  written  constitution  is  undoubtedly 
more  effective  in  this  regard,  the  advantages  are  not  all  on  its  side.  See 
Story  on  Const.  (Cooley's  ed.),  §  1576,  note  1,  and  Boudinot's  remark  in 
1  Wilson's  Works,  463. 

It  is  this  continuing  existence  of  the  unwritten  constitution  that  pre- 
serves its  identity  through  all  changes  of  the  mere  written  constitution. 
Hence  it  is  that  a  change  of  the  written  constitution  does  not  abrogate  rights 
of  propei'ty,  or  contracts  previously  entered  into  by  the  state.  If  it  were 
the  written  constitution  that  created  the  state,  these  would  vanish  with  it. 
Their  persistence  proves  that  the  same  constitution,  the  same  constituted 
state,  still  exist.  Jefferson  Branch  Bank  v.  Skelly,  1  Black,  436;  Dodge  v. 
Woolsey,  18  How.  331 ;  Sigur  v.  Crenshaw,  8  La.  An.  401. 

It  has  been  held  that  even  a  constitutional  convention,  though  repre- 
senting, as  completely  as  any  organized  bod}'  can,  the  body  of  the  peo- 
ple,—  the  power  known  as  the  sovereign  of  the  state,  —  cannot  exercise 
more  than  legislative  power,  or  destroy  this  continuity  of  existence  in  the 
state.  Lawson  v.  Jeffries,  47  Miss.  686;  12  Am.  Rep.  343/  (This  case  con- 
tains some  very  just  remarks  on  the  topic ;  but  its  method  of  discussing  the 
questions  at  large,  and  then  concluding  with  two  solid  pages  of  authorities 
examined,  reminds  one  irresistibly  of  the  famous  precedent  of  Lord  Tim- 
othy Dexter,  who  printed  all  the  punctuation  of  his  book  in  an  appendix 
at  the  end.) 

The  limitations  which  grow  out  of  the  very  nature  of  legislative  power, 

and  therefore  are  and  must  always  remain  unwritten,  are  forcibly  stated  in 

Loan  Association  v.  Topeka,  20  Wall.  655  (1874),  by  Miller,  J.,  a  judge 

whose  opinions  on  all  constitutional  questions  have  great  weight:  — 

"There  are  rights  in  every  free  government  beyond  the  control  of  the 


APPENDIX.  311 

state.  *  *  *  The  theory  of  our  governments,  state  and  national,  is 
opposed  to  the  deposit  of  unlimited  power  anywhere.  The  executive,  the 
legislative,  and  the  judicial  branches  of  these  governments  are  all  of  lim- 
ited and  defined  powers.  There  are  limitations  on  such  power  which 
grow  out  of  the  essential  nature  of  all  free  governments;  implied  reser- 
vations of  individual  rights,  withoul  which  the  social  contract  could  not 
exist,  and  which  are  respected  by  all  governments  entitled  to  the  name." 

The  following  passage  also,  from  the  dissenting  opinion  of  Beck,  J.,  in 
SO  Iowa,  45,  seems  to  me  to  go  to  the  very  heart  of  this  question :  — 

"  The  [written]  constitution  is  not  the  origin  or  foundation  of  the  peo- 
ple's rights;  it  confers  none  that  they  did  not  possess  before  its  forma- 
tion. When  they  formed  the  instrument,  they  were  possessed  of  all  rights 
with  which  nature  endows  all  men.  Society  organized  upon  the  basis  of 
Christianity  and  a  high  state  of  civilization,  the  institutions  pertaining 
thereto,  and  the  inalienable  rights  of  man,  were  in  existence  and  recog- 
nized as  the  inheritance  of  the  people.  For  the  protection  and  preserva- 
tion of  these  the  people  established  this  free  government.  Its  frame- 
work is  the  Constitution.  It  is  obvious  that  by  the  Constitution  the  peo- 
ple surrendered  no  rights  they  possessed  before  it  was  formed,  that  an 
enlightened  and  Christian  people  ought  or  may  enjoy  under  a  free  govern- 
ment. Whatever  rights  of  the  people  are  demanded  by  a  government 
designed  to  protect  the  rights  of  life,  liberty,  property,  and  the  pursuit  of 
happiness,  existing  before  the  Constitution,  the  people  surrendered  in 
that  instrument,  and  no  other.  Those  not  surrendered  are  the  reserved 
rights  of  the  people  referred  to  in  §  25  of  the  [Iowa]  Bill  of  Rights. 
Over  these  no  power  in  the  state  is  supreme.  The  power  conferred  upon 
the  General  Assembly  by  the  people,  in  the  Constitution,  is  a  power  to 
legislate  upon  all  rightful  subjects  of  legislation  in  a  manner  that  shall 
not  interfere  with  their  reserved  rights.  If  it  be  not  so,  then  have  the 
people  failed  of  their  purpose  in  the  formation  of  the  Constitution,  which 
cannot  be  admitted." 

It  is  very  remarkable  that  the  Romans,  with  their  genius  for  legislation, 
should  have  habitually  inserted  in  their  laws  an  express  provision  against 
any  unforeseen  interference  with  religion  and  morality.  This  was  the 
famous  saving  clause,  Si  quid  sacri  sancti  est,  quod  jus  non  sit  rogari, 
ejus  hac  lege  nihil  rogatur.  "  Is  there  any  thing,"  says  Cicero  in  his  Ora- 
tion pro  Csecina,  cap.  32,  33,  "  which  the  people  may  not  by  law  command 
or  forbid,  because  it  is  not  right?    This  clause  proves  that  there  may  be, 


312  APPENDIX. 

for  if  there  were  not  this  clause  would  not  be  embodied  in  all  our  laws." 
See  also  a  still  fuller  discussion  of  it  in  his  Oration  pro  Balbo,  cap.  14 ; 
and  it  is  mentioned  also  in  that  Pro  domo  sua,  cap.  40.  These  passages 
are  all  collected  and  the  whole  subject  explained  in  Brissonii,De  Formulis,. 
Lib.  II.,  cap.  14.  We  have  also  a  proof  of  the  constant  use  of  the  clause, 
in  the  fact  that  it  was  one  of  those  abbreviated  in  the  work  of  Val.  Probus. 
See  Huschke's  edition,  in  his  Jurisp.  Antejustiniana  (ed.  1867),  p.  71,  §  3. 

Yet  the  Romans  recognized  with  the  utmost  clearness  (having  no 
written  constitutions  to  modify  their  conceptions  of  the  truth,as  it  must 
be  modified  to-day)  that  a  law  cannot  be  so  framed  as  to  be  secure 
against  repeal  by  future  legislatures.  This  lies  in  the  very  nature  of  legis- 
lative power.  It  was  clearly  pointed  out  by  Cicero,  to  whom  it  was  a 
question  of  practical  interest.  Clodius  had  inserted  in  the  law  banishing 
him  a  provision  that  neither  the  senate  nor  the  people  should  repeal  that 
law  (nee  per  senatum,  nee  per  populum  posset  infirmari  sua  lex).  In 
the  proposed  law  recalling  him,  the  tribunes  had  inserted  a  clause  which 
would  leave  this  provision  in  force.  Cicero  discusses  the  matter  in  one 
of  his  Letters  to  Atticus,  Lib.  III.,  cap.  22.  The  sanction  of  a  law,  he  says, 
is  never  regarded  when  it  is  to  be  repealed,  otherwise  there  could  never 
be  a  repeal.  For  every  law  would  then  fortify  itself  with  provisions 
against  abrogation ;  but  when  a  law  is  abrogated,  these  provisions  are 
abrogated  with  it. 

To  the  same  effect,  and  substantially  in  the  same  language,  Lord  Bacon 
in  History  of  Henry  VII. 


NOTE    N. 


ON  PRECEDENT   AND   THE   DOCTRINE   OE  AUTHORITY  IN  THE 

LAW. 

The  question  of  the  weight  of  legal  precedents  may  be  stated  in  two 
quite  different  forms,  implying  different  problems;  and  it  seems  to  me 
that  much  of  the  uncertainty  which  still  hangs  over  the  subject,  even  in 
professional  minds,  is  due  to  the  lack  of  a  proper  discrimination  between 
them.  We  may  ask,  in  the  first  place,  why  precedents  have,  as  a  fact, 
exercised  so  much  influence  on  men's  minds  and  determined  the  deci- 
sion of  subsequent  cases.     Or  we  may  ask,  secondly,  what  weight  should 


APPENDIX.  313 

be  given  to  them,  upon  principle,  and  upon  what  theory  of  law  the 
courts  are  to  hold  themselves  bound  by  prior  adjudications.  The  two 
questions  arc  distinct,  although  intimately  connected.  They  belong)  tlie 
one  to  the  historical,  the  other  to  the  philosophical  aspect  of  the  law; 
and  as  it  is  only  by  a  spirit  of  partisanship,  acting  on  imperfect  and 
One-sided  knowledge  of  the  subject,  that  these  two  aspects  have  been 
converted  into  opposing  theories,  so  it  is  only  by  the  neglect  of  an 
important  element  that  the  philosophical  question  is  lost  sight  of  in 
the  historical.  'When  we  ask  why  we  have  done  or  are  doing  so  and 
so,  we  can  be  content  with  an  answer  which  gives  us  the  reason  of 
the  action  as  a  mere  fact.  But  the  moment  this  fact  is  presented  to 
our  consciousness,  —  which  in  this  sense,  as  well  as  etymologically, 
is  the  same  thing  with  our  conscience, — we  cannot  help  considering 
it  in  another  light,  provided  the  action  in  question  still  continues,  or 
is  to  be  repeated  in  the  future,  as  in  all  legal  questions  is  implied 
in  the  very  nature  of  law  as  a  general  rule.  We  cannot  go  on  doing  it 
merely  because  we  have  done  it  before,  or  merely  because  the  motives 
for  doing  it  before  still  continue  to  operate  upon  us.  We  must  inevi- 
tably scrutinize  these  motives  and  their  reasons,  and  ask  whether,  upon 
reflection,  we  can  continue  to  act  upon  them;  or  in  other  words,  whether 
we  ought  to  continue  the  custom  or  the  precedent.  The  question  what 
we  do  becomes  what  we  ought  to  do,  by  the  very  law  of  our  reflective, 
self-conscious  being. 

This  seems  to  me  to  have  been  overlooked  by  many  writers,  espe- 
cially of  what  is  known  as  the  historical  school,  who  describe  correctly 
the  processes  by  which  customary  law  is  generated  in  early  times,  and 
among  rude,  uureflective  peoples,  and  then  take  for  granted  that  the 
same  processes  must  be  sufficient  to  account  for  all  the  subsequent 
developments.  Others  by  the  same  oversight  are  led  to  ignore  or  under- 
rate the  essential  unity  of  customary  law  in  both  its  stages,  and  make 
of  the  second  or  reflective  stage  of  its  development  a  distinct  species 
of  law,  such  as  the  Juristenrecht  of  some  German  writers.  Sic,  for 
example,  the  essay  upon  Volkrecht  und  Juristenrecht  of  Beseler,  and 
indeed  the  whole  of  the  controversy  to  which  that  book  gave  rise. 

Most  writers  on  customary  law  try  to  frame  a  theory  of  the  connec- 
tion between  the  two  notions  "custom"  and  "law,"  so  as  to  explain 
in  what  way  the  binding  force  of  the  latter  is  derived  from  the  mere 
sequences  of  fact  in  th  2  former.     It  may  well  be  doubted  whether  such     t 


314  APPENDIX. 

theories  can  have  any  value  for  the  early  periods  in  which  the  enforce- 
ment of  customary  law  begins, —  to  say  nothing  of  the  still  earlier 
period,  in  which  it  probably  was  observed  as  custom  before  being 
enforced  by  public,  authority.  For  proof  of  the  existence  of  such  a 
period,  see  Hall's  account  of  the  Innuits,  where  there  is  no  government 
whatever,  every  Innuit  being,  as  he  often  says,  "independent,"  and  yet 
under  complete  bondage  to  the  customs  of  the  "first  Innuits,"  their 
ancestors.  C.  F.  Hall's  Arctic  Researches,  and  Life  among  the  Esqui- 
maux (New  York,  18G6),  especially  chap.  37,  and  pp.  463,  467,  468. 

We  may  explain  the  connection  of  the  two  things  in  our  own  minds, 
or  the  manner  in  which  that  connection  has  gradually  grown  up  in 
recent  centuries;  but  the  primitive  mind  is  too  unlike  ours  to  enable 
us  to  trace  its  workings  with  any  success  from  mere  a  prion  consider- 
tions,  or  speculations  as  to  what  "must"  have  been  the  case. 

Probably  the  mere  instinct  of  imitation,  common  to  man  with  the 
higher  animals,  may  have  had  something  to  do  with  the  origin  of  the 
customs;  and  the  dependence  on  parents,  always  greater  and  of  far 
more  relative  importance  among  savages  than  in  civilized  lands,  would 
account  for  much  more.  (Hall,  p.  445.)  It  may  be  said  that  the  latter 
takes  us  already  within  the  field  of  moral  obligation,  and  therefore  must 
be  accounted  for  as  law.  But  does  it  certainly?  Does  a  savage  obey 
or  even  reverence  and  honor  his  parent  because  he  ought  to?  That  is 
merely  assumed,  and  most  of  the  evidence  is  against  it.  There  cer- 
tainly is  nothing  thus  far  inconsistent  with  the  assumption  that  custom 
is  binding  merely  as  custom,  and  without  a  thought  of  what  we  should 
to-day  recognize  as  of  the  nature  of  law. 

No  doubt  some  reasons  can  be  given  why  precedents  should  be  followed, 
as  such,  and  without  giving  them  the  character  of  a  binding  rule.  These 
have  been  fully  treated  by  Dr.  Lieber  in  Chap.  VII.  of  the  text.  These 
considerations  have  a  place  also  in  law ;  for  it  is  by  them  that  we  must 
explain,  in  part  if  not  wholly,  the  frequent  cases  where  precedents  that 
are  acknowledged  to  have  been  wrongly  decided  in  the  first  place,  or  not 
to  be  founded  in  principle,  are  still  adhered  to  because  they  have  become 
rules  of  property,  etc. 

When  a  particular  doctrine  has  been  followed  in  practice  for  a  long 
time,  and  especially  when  it  is  one  upon  which  rests  the  validity  of  many 
settlements  or  titles  to  real  estate,  courts  will  follow  it  even  if  there  is  no 
other  reason  for  their  doing  so.     See   the  conclusion  of  Lord  Ellenbor- 


APPENDIX.  315 

ough's  judgment  in  Doe  7-.  Manning,  9  East,  50-71  (1807).  Also  remarks 
of  English  judges,  collected  by  Cooley;  Cooley's  Const.  Lim.  51,  note. 
As  to  extra-judicial  precedents,  see  also  Troup  v.  Haight,  Hopk.  Ch.  2G8 ; 
Meriam  v.  Earsen,  2  Barb.  Ch.  269;  Bant  of  Utica  v.  Mersereau,  3  Barb. 
Ch.  577;  McKeen  v.  Delancy's  Lessee,  5  Cr.  32;  McFerran  o.  PowerSi 
1  Serg.  &  R.  106;  Sedgw.  on  Stat.  &  Const.  Law,  215  et  seq. 

In  Strong  v.  Clem,  12  End.  37,  the  court  held  that  where  an  estate  had 
been  conveyed  by  the  husband  alone,  the  wife  not  joining,  and  the  Legis- 
lature had  subsequently  abolished  dower  and  substituted  a  fee-simple 
estate  in  one-third,  such  an  act  could  not  constitutionally  apply  to  give 
the  widow  her  thirds  in  such  case,  as  it  would  be  an  unconstitutional 
divesting  of  vested  rights.  This  was  followed  by  cases  in  vols.  12,  13,  14, 
15,  1G,  20,  22,  and  29  Indiana,  and  fully  reviewed  and  affirmed  in  Harrow 
v.  Myers,  29  Inch  469,  as  having  become  a  rule  of  property. 

In  Bowen  v.  Preston,  48  Ind.  36S  (1875),  it  was  again  discussed;  and 
Buskirk,  C.  J.,  speaks  of  it  thus:  "The  writer  of  this  opinion  concurs 
with  his  brethren  that  we  should  adhere  to  such  ruling,  though  he  is  thor- 
oughly satisfied  that  such  ruling  was  radically  wrong,  unsound  in  principle, 
and  pernicious  inits  consequences ;  but  to  overrule  it  now  would  not  repair 
the  evil  it  produced,  and  would  unsettle  titles." 

The  effect  of  the  precedent  in  these  cases  is  clearly  shown  by  the  distinc- 
tions made  between  decisions  sustaining  the  validity  of  a  certain  kind  of 
instruments,  or  a  certain  form  of  proceeding,  and  those  denying  their 
validity.  It  is  evident  that  no  general  method  of  business  can  be  formed 
on  a  mere  negative  as  in  the  latter  case.  For  instance:  If  the  courts 
decide  a  certain  form  of  guaranty  to  be  good,  it  is  evident  that  men  will 
hereafter  use  that  form  and  rely  upon  it;  and  that  no  court  can  subse- 
quently declare  it  bad  without  the  risk  of  great  mischief,  by  making 
worthless  existing  contracts  and  obligations.  But  if  the  former  decision 
had  been  that  it  were  bad,  the  only  practice  that  could  be  founded  on 
such  a  decision  would  be  a  practice  of  abstaining  entirely  from  the  use  of 
such  a  form;  and  a  subsequent  decision,  reversing  the  former  ml  hold- 
ing the  form  to  be  good,  would  do  little  if  any  harm.  This  was  exempli- 
fied in  Brewster  v.  Silence,  8  N.  Y.  207  (1853),  overruled  by  Church  v. 
Brown,  21  N.  Y.  315  (I860);  and  the  distinction  above  mentioned  is 
expressly  recognized  by  Comstock,  C.  J.,  in  p.  335  of  the  latter  case. 

A  precedent  is  authority  in  the  highest  sense  of  the  word,  and  without 
reference  to  its  merit  or  reason,  when  it  is  one  made  by  a  court  having 


31(5  APPENDIX. 

appellate  jurisdiction  over  that  to  which  it  is  cited.  Thus  in  England  a 
decision  of  the  House  of  Lords  is  binding  on  all  the  ordinary  courts  of 
justice,  so  that  they  will  not  even  allow  the  same  question  to  be  argued 
again  before  them,  but  will  only  hear  counsel  as  to  the  applicability  of 
the  cited  authority. 

For  a  good  illustration  of  this  see  LicheH's  Case,  1  Sim.  (x.  s.)  187 
(1851),  and  Bert's  Case,  1  Sim.  (x.  s.)  193.  The  argument  before  the 
vice-chancellor  turned  entirely  on  the  question  whether  the  case  could  be 
distinguished  from  Upfill's  (H.  L.  Cas.  67-1),  and  the  vice-chancellor  took 
the  case  under  advisement  to  compare  it  with  the  latter,  though  he  said 
at  the  same  time  that  he  did  not  understand  that  case,  which  he  intimates 
repeatedly  (pp.  189,  196)  was  hastily  decided  and  without  sufficient  con- 
sideration. Yet  finding  that  the  cases  on  trial  could  not  be  distinguished, 
he  felt  bound  to  decide  them  as  Upfill's  case  was  decided,  saying :  "  Though 
I  stated  that  I  do  not  know  that  I  quite  understand  Upfill's  case,  yet  it  is 
a  perfectly  binding  decision  no  doubt." 

The  use  of  precedents  as  authority  in  this  sense  was  very  early  recog- 
nized by  the  courts.  In  Horwood's  Year  Book,  32  Edw.  I.,  p.  32  (A.  D. 
1304),  we  find  it  said:  — 

"  Herle.  But  consider  whether  he  shall  be  received  to  aver  these  three 
causes ;  for  the  judgment  to  be  by  you  now  given  will  be  hereafter  an 
authority  in  every  quaere  admisit  in  England." 

Bractou  proves  the  use  of  such  precedents  nearly  half  a  century  earlier, 
but  I  think  this  is  the  first  judicial  recognition  of  it. 

But  there  are  many  degrees  of  authority.  Almost  any  thing  that  may 
under  any  circumstances  be  admitted  to  influence  the  mind  of  a  court 
has  at  some  time  been  called  an  authority. 

Where  two  courts  have  coordinate  jurisdiction,  though  the  decision  of 
neither  is  binding  on  the  other,  still  it  will  yet  be  termed  an  authority. 

Thus,  in  Tetley  v.  Taylor,  1  El.  &  Bl.  521,  531  (1851),  Lord  Campbell, 
delivering  the  judgment  of  the  Queen's  Bench,  says:  "We  have  been 
(not  unduly)  pressed  with  the  authority  of  Drew  v.  Collins,  6  Exch.  670 
(1851).  To  that  authority  we  have  paid  the  most  sincere  respect;  but 
after  a  very  careful  examination  we  are  not  able  to  assent  to  the  reason- 
ing on  which  it  rests.  As  it  is  only  the  decision  of  a  court  of  coordinate 
jurisdiction,  we  do  not  consider  ourselves  bound  by  it ;  and  we  have  the 
less  reluctance  to  decide  according  to  our  own  opinion,  as,  the  question 
being  upon  the  record,  it  may  be  carried  to  the  Exchequer  Chamber  and 


APPENDIX.  317 

the  House  of  Lords."  And  it  will  be  seen,  on  examining  the  two  cases, 
that  they  are  directly  opposed  to  each  other,  though  made  in  the  same 
year,  — one  in  Jane,  the  other  in  November.  The  latter  was  subsequently 
reversed  in  Exchequer  Chamber. 

Time  of  itself  is  a  very  important  element  of  authority.  The  longer  a 
particular  case  has  been  recognized  as  law,  the  more  difficult  it  is  to  per- 
suade the  courts  to  reverse  it. 

Thus,  Dumpor's  Case,  2  Coke,  119,  also  in  1  Smith's  Leading  Ca 
(1603),  was,  as  Mr.  Smith  says,  "acted  on  for  a  Ioitj:  time,  although  more 
than  once  disapproved  of.  In  Doe  v.  Bliss,  4  Taun.  736,  Sir  James  Mans- 
field, C.  J.,  said:  'The  profession  have  always  wondered  at  Dumpor's 
case,  but  it  has  been  law  so  many  centuries  that  we  cannot  now  reverse 
it.'  And  in  Brummel  v.  Macpherson,  14  Ves.  173,  Lord  Eldon  said: 
'Though  Dumpor's  case  always  struck  me  as  extraordinary,  it  is  the 
law  of  the  land.'  Accordingly,  it  was  affirmed  by  many  subsequent  deci- 
sions "  (Smith,  p.  87),  until  the  law  was  changed  by  statute,  22  &  23  Vict., 
c.  35,  and  23  &  24  Vict.,  c.  28. 

Even  treatises  are  sometimes  called  authorities,  and  in  the  haste  of  a  nisi 
prius  trial  may  no  doubt  be  accepted  as  such.  But  the  distinction  between 
such  an  authority  and  a  precedent  has  been  clearly  pointed  out  by  a  dictum 
of  Lord  Chancellor  Lyndhurst :  "Lord  Rodesdale's  treatise  has  been  re- 
ferred to;  but  however  valuable  his  treatise  may  be,  it  is  much  more 
satisfactory  when  we  have  from  the  same  eminent  judge  his  opinion 
declared  in  the  exercise  of  his  judicial  duties.  For  that  purpose  I  will 
refer  to  tin'  case  of  O'Connor  v.  Speight,  1  Sch.  &  Lef.  309."  Per  Lynd- 
hurst, Ch.,  in  Foley  v.  Hill,  2  H.  L.  Cas.  28,  38. 

But  these  cases,  after  all,  do  not  touch  the  main  question  of  precedent: 
the  reason,  and  not  merely  the  fact,  that  "rerum  pcrpetuo  similiter  judi- 
catorum  authoritatem  vim  legis  obtincre  debere."  Dig.  I.,  3,  37.  (The 
difference  between  the  meaning  of  this  expression  and  those  which  desig- 
nate merely  a  force  of  example,  like  that  which  Dr.  Lieber  has  attached  to 
precedent  in  the  text,  will  be  clearly  seen  by  comparing  this  passage  with 
Inst.  II.,  23,  1,  where  a  case  of  the  latter  kind  is  mentioned.)  So  soon 
as  any  law  comes  to  be  treated  as  a  science,  the  question  must  take  that 
form,  as  we  have  pointed  out  before.  And  the  answer  given  t<>  it  will 
inevitably  be  that  the  precedent,  as  such,  cannot  bind;  there  rausl  b  a 
law,  or  a  legislator,  behind  it,  to  give  it  authority.  This  is  the  true  i 
of  the  famous  dictum  of  Justinian,  Quum  nun  exemplis,  sed  legibus,  judi- 


318  APPENDIX. 

candumsit"  (Cod.  VII.,  45, 13),  — a  phrase  that  has  perhaps  been  oftener 
misapplied  than  any  other  in  the  Corpus  Juris  Civilis,  as  if  it  prohibited 
the  use  of  precedents  altogether. 

Duck  (De  Usu  Juris  Civilis,  Lib.  II.,  p.  381,  cap.  8,  pars  3,  §  8)  denied 
that  either  our  legal  writers,  Bracton,  etc.,  or  our  books  of  reports  have 
the  authority  of  law,  "for  our  lawyers'  treatises  are  written  by  those  who 
have  no  power  of  making  law;  and  judges  of  the  present  day  are  not 
always  bound  by  the  precedents  of  cases  adjudged  by  those  of  former 
ages,  unless  they  think  them  to  be  applicable  to  the  cases  discussed 
before  them.  Nor  has  one  equal  imperium  over  another;  nor  has  the  pre- 
decessor more  power  than  he  leaves  to  his  successor;  nor  can  anyone 
impose  a  law  on  his  successor,  since  the  power  of  both  is  equal,  and  judg- 
ment is  to  be  given  according  to  the  laws,  not  according  to  the  precedents, 
as  our  Emperor  Justinian  wrote  back."  He  cites  various  passages  of  civil 
and  canon  law ;  but  it  is  evident  that  the  whole  force  of  his  argument  rests 
on  the  assumption  that  the  judge  must  make  the  law  when  he  adjudicates, 
if  it  be  law  at  all,  and  that  this  being  impossible,  the  cases  are  not  law. 
(Compare  this  with  Austin's  position  as  stated  further  on  in  this  note.) 

This  answer  was  very  clearly  and  tersely  stated  more  than  a  century  ago, 
by  a  jurist  of  great  reputation  in  his  time:  "No  custom  is  obligatory  of 
itself,  because  there  is  no  reason  why  the  mere  repetition  of  acts  should 
produce  an  obligation  to  continue  that  repetition."  In  se  nulla  obligatio 
est  obligatoria,  quia  nulla  est  ratio  cur  ex  actuum  reiteratione  obligatio 
nasci  debeat,  ad  actus  hactenus  saepius  susceptos  uniformiter  continu- 
andos.     Hellfeld,  Jurisp.  Forensis,  §  8-t. 

It  is  evident,  too,  upon  a  moment's  reflection,  that  examples  and  cus- 
toms cannot  be  binding  of  themselves,  because  much  the  larger  part  of 
them  are  not  so  considered  by  an}'body.  To  make  the  custom  enforceable, 
there  must  be  something  to  distinguish  it  from  the  great  mass  of  unen- 
forceable customs ;  and  it  is  in  that  specific  difference,  not  in  its  general 
character  as  a  custom,  that  its  legal  quality  resides. 

Mr.  Austin  has  seen  the  force  of  this,  and  used  it  as  an  argument  for  his 
own  theory,  to  be  mentioned  farther  on.  "  All  the  customs  immemorially 
current  in  the  nation  are  not  legally  binding.  But  all  these  customs 
would  be  legally  binding,  if  the  positive  laws,  which  have  been  made  upon 
some  of  them,  obtained  as  positive  laws  by  force  of  immemorial  usage." 
Lectures  on  Jurisprudence,  II.,  p.  55G.  (The  italics  in  this  sentence  are 
in  the  original.)     This  is  perfectly  true,  and  so  far  all  would  agree  with 


APPENDIX.  319 

him.  He  goes  on,  however,  to  use  an  argument  of  which  I  cannot  see 
the  force.  "Positive  law  made  by  custom  is  often  abolished  by  Parlia- 
ment or  by  judicial  decisions.  But  supposing  it  existed  as  positive  law 
by  virtue  of  the  consensus  utentium,  it  could  not  be  abolished,  conform- 
ably to  that  supposition,  without  the  consent  and  authority  of  these  its 
imaginary  founders."  Ibid.  But  why  not?  No  one  has  ever  claimed  that 
custom  had  a  power  superior  to  that  of  direct  legislation.  No  answer  to 
Mr.  Austin's  objection  could  be  more  directly  appropriate  than  that  of 
Julian:  "Quid  interest  suffragio  populus  voluntatem  suam  declaret,  an 
rebus  ipsis  et  factis?  "     Dig.  I.,  3,  32. 

What,  then,  is  this  specific  difference  which  gives  the  force  of  law  to 
some  customs  and  not  to  others?  I  think  the  answers  now  current  to  this 
question,  at  least  so  far  as  it  has  been  asked  by  English  and  American  law, 
may  be  reduced  to  two  general  types  or  theories,  which  may  be  called, 
for  convenience,  the  theory  of  a  common  law,  and  the  theory  of  indirect 
or  judicial  legislation. 

According  to  the  former,  precedents  are  not  binding  of  themselves, 
but  are  evidences  of  the  existence  and  commands  of  an  unwritten  law,  in 
accordance  with  which  they  are  decided.  As  the  civilians  express  the 
same  thing  in  the  more  general  form  of  customary  law,  the  usage  is  the 
source  of  our  knowledge  of  the  law,  but  not  the  source  o'f  the  law  itself. 
This  distinction  was  first  formulated,  so  far  as  I  know,  by  Thomasius, 
about  two  centuries  ago.  He  said:  "It  is  not  the  custom  itself  that  we 
respect  as  a  law,  but  it  is  the  law,  or  other  obligation,  the  existence  of 
which  is  presumed  from  the  custom.  The  latter  is  not  a  principium  essendi, 
but  only  a  principium  cocjnoscendi.'''' 

But  the  theory  has  been  held  in  England,  more  or  less  explicitly,  from 
the  time  when  the  common  law  began  to  be  inferred  from  the  decisions  of 
the  courts.  See  Ancient  Law,  pp.  30,  31.  Sir  H.  S.  Maine,  though  not  a 
believer  in  it,  describes  it  fairly  thus:  "When  a  group  of  facts  come  be- 
fore an  English  court  for  adjudication,  the  whole  course  of  the  discussion 
between  the  judge  and  the  advocate  assumes  that  no  question  is  or  can  be 
raised  which  will  call  for  the  application  of  any  principles  but  old  ones, 
or  of  any  distinctions  but  such  as  have  long  since  been  allowed.  It  is 
taken  absolutely  for  granted  that  there  is  somewhere  a  rule  of  known  law 
which  will  cover  the  facts  of  the  case  now  litigated,  and  that  if  such  a 
rule  be  not  discovered,  it  is  only  that  the  necessary  patience,  knowledge, 
or  acumen  is  not  forthcoming  to  detect  it."     (p.  30.) 


320  APPENDIX. 

This  is  the  same  doctrine  which  St.  Germain  stated  almost  four  hundred 
years  ago,  making  the  common  iaw  to  consist  of  a  body  of  customs  and 
maxims  known  to  the  judges  alone. 

"And  because  the  said  customs  be  neither  against  the  law  of  God  nor 
the  law  of  reason,  and  have  been  alway  taken  to  be  good  and  necessary 
for  the  common  wealth  of  all  the  realm ;  therefore  they  have  obtaiued  the 
strength  of  a  law,  insomuch  that  he  that  doeth  against  them  doeth  against 
justice;  and  these  be  the  customs  that  properly  be  called  the  common  law. 
And  it  shall  alway  be  determined  by  the  justices  whether  there  be  any 
such  general  custom  or  not,  and  not  by  twelve  men  [the  jury].  And  of 
these  general  customs,  and  of  certain  principles  that  be  called  maxims, 
which  also  take  effect  by  the  old  custom  of  the  realm,  dependeth  most 
part  of  the  law  of  the  realm."  Doctor  and  Student,  Dialogue  I.,  chap.  7. 
The  reader  should  also  examine  chaps.  S,  9. 

It  is  needless  to  multiply  quotations  showing  that  this  has  been  the 
accepted  doctrine  of  English  law  from  the  beginning.  The  following 
statement  of  it  from  Blackstone  must  be  quoted  here,  because  it  has  been 
the  objective  point  of  most  of  the  attacks  made  by  recent  opponents  who 
held  to  the  other  theory :  — 

"  For  it  is  an  established  rule  to  abide  by  former  precedents  where  the 
same  points  come  again  in  litigation,  as  well  to  keep  the  scale  of  jus- 
tice even  and  steady,  and  not  liable  to  waver  with  every  new  judge's 
opinion,  as  also  because  the  law  in  that  case  being  solemnly  declared  and 
determined,  what  before  was  uncertain,  and  perhaps  indifferent,  is  now 
become  a  permanent  rule,  which  it  is  not  in  the  breast  of  any  subsequent 
judge  to  alter  or  vary  from,  according  to  his  private  sentiments,  he  being 
sworn  to  determine,  not  according  to  his  own  private  judgment,  but 
according  to  the  known  laws  and  customs  of  the  land;  not  delegated  to 
pronounce  a  new  law,  but  to  maintain  and  expound,  the  old  one.  Yet  this 
rule  admits  of  exception,  where  the  former  determination  is  most  evi- 
dently contrary  to  reason ;  much  more  if  it  be  contrary  to  the  divine  law. 
But  even  in  such  cases,  the  subsequent  judges  do  not  pretend  to  make  a  new 
law,  but  to  vindicate  the  old  one  from  misrepresentation.  Tor  if  it  be 
found  that  the  former  decision  is  manifestly  absurd  or  unjust,  it  is  de- 
clared, not  that  such  a  sentence  was  bad  law,  but  that  it  was  not  law ;  that 
is,  that  it  is  not  the  established  custom  of  the  realm,  as  has  been  errone- 
ously determined."     1  Bl.  Comm.  G9. 

But  where  is  this  common  law  to  be  found?    If  the  decided  cases  are 


APPENDIX.  321 

■only  deductions  from  it,  and  if  the  judges  who  decide  them  really  do  as 
they  have  always  claimed,  jus  dicere,  not  jus  darn,  we  ought  to  be  able  to 
point  out  the  law  itself  from  which  their  rules  are  drawn,  or  at  Least  to 
show  where  and  in  what  shape  it  exists.  There  was  QO  difficulty  in  doing 
this  when  St.  Germain  and  Coke  wrote,  and  so  down  to  the  time  of  Black- 
stone,  even  without  accepting  sir  Henry  Maine's  Insinuation  that  "the 
judges  of  the  thirteenth  century  may  have  really  had  at  their  command  a 
mine  of  law  unnvealed  to  the  bar  and  to  the  lay  public,  for  there  is  some 
reason  for  suspecting  that  in  secret  they  borrowed  freely,  though  not 
always  wisely,  from  current  compendia  of  the  Roman  and  Canon  laws. 
But  that  storehouse  was  closed  as  soon  as  the  points  decided  at  West- 
minster Hall  became  numerous  enough  to  supply  a  basis  for  a  substantive 
system  of  jurisprudence."     Ancient  Law,  p.  31. 

It  certainly  was  not  the  Roman  law  that  the  English  judges  and  writers 
meant  during  all  the  long  period  from  the  fourteenth  to  the  eighteenth 
centuries,  when  they  asserted  the  actual  existence  of  a  common  law  01 
which  their  precedents  were  only  the  evidence  and  the  results.  In  the 
theories  then  universally  accepted,  the  law  of  God  was  a  constituent  part 
of  human  jurisprudence,  and  the  law  of  nature  had  as  real  and  definite  an 
existence  as  any  other  part  of  that  system.  "Scripture  est  common  ley, 
Mir  quel  touts  manieres  de  leis  sont  fondes,"  said  Prisot,  C.  J.,  in  Year 
Book,  34  Hen.  VI.,  40.  See  also  Ilex  v.  Woolston,  Stra.  S34,  and  Hawk. 
P.  C,  Book  I.,  chap.  5,  §  G. 

"Therefore  thou  shalt  understand  that  the  law  of  England  is  grounded 
upon  six  principal  grounds:  First,  it  is  grounded  upon  the  law  of  reason; 
secondly,  on  the  law  of  God;  thirdly,  on  divers  general  customs  of  the 
realm;  fourthly,  on  divers  principles  that  be  called  maxims;  fifthly,  on 
divers  particular  customs;  sixthly,  on  divers  statutes  made  in  Parlia- 
ment."    Doctor  and  Student,  Dialogue  I.,  chap.  4. 

As  the  line  between  religious  and  temporal  law  came  to  be  more  clearly 
discerned  alter  the  Reformation,  the  law  of  God  ceased  to  be  quoted,  at 
least  under  that  name,  in  the'eourts;  but  the  law  of  nature  and  of  reason 
still  supplied  an  ample  basis  for  the  theory.  The  common  law  was  said 
to  be  common  reason,  and  Lord  Mansfield  and  his  contemporaries  repeated 
again  and  again  the  remark  that  "the  reason  and  spirit  of  cases  make 
law,  not  the  language  of  particular  precedents."  3  Burr.  1364;  7  Barn. 
&  Cress.  GGO. 

The  extravagant  and  illusory  systems  of  natural  law,  so  current  in  the 

21 


322  APPENDIX. 

seventeenth  and  early  part  of  the  eighteenth  century,  produced  a  reaction 
at  last ;  and  Bentham  and  others,  rushing  to  an  opposite  extreme,  began  to 
deny  the  existence  of  any  "law  of  nature,"  and  the  legal  authority  of  any 
principle  or  doctrine,  that  could  not  be  reduced  to  the  narrow  conception 
of  a  command  given  by  the  sovereign.  They  could  not  deny  the  authority 
of  precedents,  for  that  would  have  been  to  almost  destroy  the  law  of  the 
kingdom.  "Judgments  of  Westminster  Hall  are  the  only  authority  we 
have  for  by  far  the  greatest  part  of  the  law  of  England,"  said  Best,  C.  J., 
in  3  Bing.  588.  But  upon  their  own  favorite  theory  they  could  not  assign 
to  a  precedent  any  authority  of  its  own.  If  law  is  necessarily  and  in  its 
very  nature  the  command  of  a  superior,  it  would  seem  to  follow  that  the 
preceding  decision  of  another  subject  can  no  more  make  law  for  us  than 
the  disobedience  of  one  servant  could  justify  another  in  the  like  conduct. 
This  is  too  plain  to  have  escaped  the  logical  acumen  of  such  a  mind  as 
Austin's,  and  consequently  we  find  that  — holding  firmly  as  he  did  to  the 
theory  — he  was  forced  to  abandon  altogether  the  doctrine  of  precedent, 
as  such,  and  to  resolve  the  English  authority  of  decided  cases  into  a 
species  of  indirect  legislation.  In  his  view,  the  judge  who  decides  a  case 
of  new  impression  really  makes  the  rule  that  he  professes  to  find,  and  his 
professions  of  dependence  on  principles,  his  uttered  distinction  between 
jus  dicere  and  jus  dare,  sink  to  the  level,  if  not  of  a  solemn  cheat,  at 
least  of  a  legal  fiction. 

"The  legal  rule  which  is  derived  from  the  customary  is  a  rule  of  judi- 
ciary law.  But  though  as  a  rule  of  judiciary  law  it  is  not  less  positive 
law  than  it  would  be  if  it  were  a  statute,  it  often  is  deemed  law  emanating 
from  a  custom,  or  jus  monbus  constitutum.  For,  since  the  judicial  legisla- 
tor is  properly  acting  judicially,  and  therefore  abstains  naturally  from  the 
show  of  legislation,  he  apparently  applies  a  preexisting  rule,  instead  of 
making  and  applying  a  new  rule.  And  as  the  preexisting  rule  which  he 
appears  to  apply  is  apparently  the  customary  rule,  on  which  he  shapes  the 
positive,  the  source  of  that  customary  rule  and  the  source  of  the  positive 
law  which  he  virtually  establishes  are  not  infrequently  confounded. 
Whether  the  moral  rule  be  converted  into  judiciary  or  into  statute  law,  it 
emanates  as  law  from  the  legislator  who  grounds  a  statute  upon  it,  or 
from  the  judge  who  assumes  it  as  the  base  of  a  judicial  decision.  The 
source  or  fons  of  the  legal  rule  is  not  consensus  utentium,  although  it 
retains  the  name  of  customary  law,  when  clothed  with  the  legal  sanction 
in  the  judicial  mode.    Those  who  maintain  that  it  existed  as  law  before 


APPENDIX.  323 

it  was  enforced  by  the  legal  sanction,  or  that  it  was  established  as  law 

consensu  nil  a /in  hi,  confound  law  with  positive  morality,  and  run  Into  num- 
berless inconsistencies  which  thc\  cannot  possibly  avoid.  They  are 
obliged  to  admit  thai  its  continuance  as  law  depends  on  the  sovereign 
pleasure;  although  if  it  existed  as  law  independently  of  the  will  of  the 
sovereign,'  no  one  could  abrogate  it  except  its  authors."  Austin,  Lectures 
on  Jurisprudence,  IT.,  p.  553. 

In  another  passage,  Austin  speaks  of  "the  childish  fiction  employed  by 
our  judges,  that  judiciary  or  common  law  is  not  made  by  them,  but  is  a 
miraculous  something  made  by  nobody,  existing,  I  suppose,  from  eternity, 
and  merely  declared  from  time  to  time  by  the  judges."  (p.  655.)  And  the 
assumption  that  the  judges  really  legislate  by  authority  from  the  sover- 
eign, when  they  decide  a  case  which  becomes  a  precedent,  runs  all  through 
Mr.  Austin's  work,  and  can  hardly  be  fully  represented  by  a  brief  extract. 
From  him  it  has  been  copied  by  that  large  school  of  recent  writers, 
English  and  American,  who  regard  the  "Lectures  on  Jurisprudence"  as 
the  oracle  of  an  entirely  new  science  of  law.  One  of  them  recently 
having  occasion  to  refer  to  Blackstone's  view  ("that  judicial  decisions 
are  not  the  source  of  laws,  but  evidence  of  a  preexisting  law"),  says  that 
it  "would  at  the  present  day  have  few  theoretical  supporters,  though  its 
practical  influence  is  still  considerable."  Digby,  Hist,  of  Real  Property 
Law,  p.  53.  Professor  J.  N.  Pomeroy  somewhere  speaks  with  even  less 
respect  of  the  old  theory,  but  I  have  not  his  book  at  hand  to  quote  his 
language. 

Sir  Henry  Maine,  who  denies  entirely  the  distinction  between  written 
and  unwritten  law,  as  the  terms  are  now  used,  states  the  process  by  which 
judge-made  law  is  formed,  as  follows :  — 

"At  the  present  moment  a  rule  of  English  law  has  first  to  be  disen- 
tangled from  the  recorded  facts  of  adjudged  printed  precedents;  then 
thrown  into  a  form  of  words,  varying  with  the  taste,  precision,  and  knowl- 
edge of  the  particular  judge ;  and  then  applied  to  the  circumstances  of  the 
case  for  adjudication.  But  at  no  stage  of  this  process  has  it  any  character- 
istic which  distinguishes  it  from  written  law.  It  is  written  case-law,  and 
only  different  from  code-law  because  it  is  written  in  a  different  way." 
Ancient  Law,  p.  13. 

I  have  so  much  respect  for  Sir  Henry  Maine,  and  such  an  admiration  for 
the  great  service  he  has  rendered  to  the  study  of  English  law,  — a  service 
greater,  I  think,  than    that  of  any  other  contemporary  writer,  —  that  I 


324  APPENDIX. 

should  feel  very  willing  to  accept  his  distinction  between  case-law  and 
code-law  as  equivalent  to  what  has  commonly  been  called  the  distinction 
between  written  and  unwritten  law,  if  that  only  would  bring  his  view  into 
harmony  with  the  theory  of  the  common  law.  The  entire  effect  of  the 
change  would  then  be  spent  upon  the  definition  given  to  the  terra  "  written 
law,"  which,  according  to  him,  would  mean  any  law  expressed  iu  writing. 
But  we  should  still  have  to  meet  the  same  question  in  the  distinction  of 
case-law  and  code-law,  and  the  older  form  of  it  is  too  firmly  in  possession 
to  be  easily  dislodged.  The  essential  difference  still  remains,  that  the 
"form  of  words,  varying  with  the  taste,  precision,  and  knowledge  of  the 
particular  judge,"  is  not  authoritative,  while  the  form  of  words  in  which  a 
legislator  has  expressed  his  rule  is  so.  Every  tribunal  that  has  occasion 
to  apply  the  former  may  criticise  it  at  pleasure,  and  change  the  statement 
of  it  according  to  its  own  "taste,  precision,  and  knowledge,"  and  still 
decide  the  case  under  the  same  rule  of  "  case-law,"  as  Sir  H.  Maine  would 
say,  or  "  unwritten  law,"  in  the  more  common  phrase.  But  when  the  law 
is  "written,"  or  "code-law,"  he  must  conform  his  interpretation  and 
decision  to  its  exact  language. 

(Sir  Matthew  Hale  has  perhaps  expressed  this  distinction  more  clearly 
than  any  other  of  our  purely  English  writers,  in  his  History  of  the  Common 
Law.) 

Now  it  is  this  very  distinction  that  Mr.  Austin  and  all  his  followers 
seem  entirely  to  overlook,  when  they  declare  that  the  judge  makes  law  by 
his  decision  just  as  the  legislator  does  by  his  statute.  It  would  be  idle 
to  quote  here  the  innumerable  authorities  that  declare  that  the  force  of  a 
precedent  does  not  lie  in  the  language  of  the  judge  deciding  it.  It  is  a 
commonplace  of  the  bench,  that  the  authority  of  a  case  lies  in  the  point 
decided,  and  not  in  the  language  of  the  judge ;  that  it  is  the  reason  and 
spirit  of  the  cases  which  form  the  law ;  that  the  law  consists  in  the  prin- 
ciples recognized  by  the  cases,  and  not  in  the  terras  employed.  No  judge 
hesitates,  even  while  following  a  precedent,  to  criticise  the  language  in 
which  it  is  stated,  or  to  restate,  in  a  form  he  deems  more  exact.the  prin- 
ciple upon  which  the  former  decision  rested. 

That  the  language  used  by  judges  in  deciding  a  case  is  not  authority,  is 
well  established.  In  Jolly  v.  Rees,  15  C.  B.  (n.  s.)  628,  640  (1864),  Chief 
Justice  Erie  says:  "The  plaintiffs  rely  on  observations  made  by  judges, 
both  in  Manby  v.  Scott  and  in  some  later  cases ;  but  the  answer,  in  point 
of  authority,  is  that  the  adjudications  have  not  supported  the  observations 


APPENDIX.  325 

on  which  they  rely.  In  Manby  v.  Scott  those  judges  were  the  minority; 
and  the  observations  referred  to  in  later  cases  have  not  been  the  ground 
of  any  decision." 

"It  is  a  maxim  not  to  be  disregarded,  that  general  expressions,  in 
every  opinion,  are  to  be  taken  in  connection  with  the  case  in  which 
those  expressions  are  used.  If  they  go  beyond  the  case,  they  may  be 
respected,  but  ought  not  to  control  the  judgment  in  a  subsequent  suit 
where  the  very  point  is  presented  for  decision.  The  reason  of  this 
maxim  is  obvious.  The  question  actually  before  the  court  is  investi- 
gated with  care,  and  considered  in  its  full  extent.  Other  principles 
which  may  serve  to  illustrate  it  are  considered  in  their  relation  to  the 
case  decided,  but  their  possible  bearing  on  all  other  cases  is  seldom 
completely  investigated."  Per  Marshall,  C.  J.,  in  Cohens  v.  Virginia,  6 
Wheat.  20-4,  399  (1821).  But  Mr.  Jefferson,  who  was  certainly  a  good 
common-lawyer,  declared  that  all  the  doctrine  laid  down  by  the  Supreme 
Court  in  this  very  case,  and  in  Marbury  v.  Madison,  was  obiter  dictum. 
Correspondence,  vol.  4,  p.  75,  as  quoted  in  Southern  Law  Beview,  p.  752 
(January,  1S7G). 

"The  expressions  of  every  judge  must  be  taken  with  reference  to 
the  case  on*\vhich  he  decides,  otherwise  the  law  will  get  into  extreme 
confusion.  That  is  what  we  are  to  look  at  in  all  cases.  The  manner 
in  which  he  is  arguing  it  is  not  the  thing;  it  is  the  principle  he  is 
deciding."  Per  Best,  C.  J.  C.  P.,  in  Richardson  v.  Mellish,  2  Biug.  229, 
248  (1824).  See  also  what  is  said  by  Graves,  J.,  in  Lake  Shore  &  Mich- 
igan Southern  R.  Co.  v.  Perkins,  25  Mich.  329,  12  Am.  Rep.  275,  2S1. 

I  do  not  see  how  the  followers  of  Austin  can  get  over  this  difficulty, 
consistently  witli  their  own  definition  of  a  law.  Nor  do  I  see  how  they 
can  explain  such  cases  as  Money  v.  Leach,  3  Burr.  1G92,  where  the 
question  of  the  legality  of  general  warrants  was  regularly  raised  for 
the  first  time.  The  report  in  Burrows  contains  nothing  but  a  matter  of 
practice  with  reference  to  bills  of  exceptions.  The  fact  was  that  in 
the  course  of  the  argument  Lord  Mansfield  threw  out  an  opinion  against 
the  legality  of  the  warrants,  and  therefore  the  attorney-general,  Yorke, 
contrived  to  be  beaten  on  a  by-point,  without  any  decision  of  the  main 
question.  "But  without  a  formal  judgment,  general  warrants  have 
ever  since  been  considered  illegal,  although  they  were  sanctioned  by  an 
uniform  usage  of  ancient  standing  in  the  office  of  the  secretary  of  state." 
Lord  Campbell's  Chancellors,  VI.,  p.  370. 


326  APPENDIX. 

The  mere  hint  of  a  judge  could  not,  on  any  theory,  be  supposed  to 
make  the  law,  though  it  might  have  the  effect  of  declaring  what,  in  his 
opinion,  it  was  already. 

Nor  will  Mr.  Austin's  theory  account  for  the  uniform  refusal  of  the 
courts  to  declare  (or,  as  he  would  say,  to  make)  the  law  in  any  form 
than  in  the  decision  of  a  case  actually  arising  and  brought  before  them 
upon  its  real  facts.  The  judges  of  the  Supreme  Court  of  the  United 
States,  when  asked  by  President  Washington  to  advise  him  as  to  the 
proper  exposition  of  the  treaties  with  France,  answered  that  they  con- 
sidered themselves  inhibited  from  counselling  or  deciding,  in  their  official 
character,  on  political  questions,  or  on  any  questions  not  brought  before 
them  in  the  recognized  forms  and  regular  progress  of  legal  controversy. 
Marshall's  Life  of  Washington,  Vol.  V.,  pp.  441-443.  The  same  position 
has  been  repeatedly  taken  by  State  courts  since. 

The  innovation  made  by  Mr.  Austin's  doctrine  of  judicial  legislation  is 
by  no  means  one  of  pure  theory,  without  influence  upon  the  practical  deci- 
sions of  our  courts.  A  single  illustration  of  its  bearings  upon  actual  life 
must  suffice,  but  it  will  answer  in  place  of  many. 

Under  the  older  doctrine  it  had  always  been  held  that  every  one  must 
be  presumed  to  know  the  common  law,  and  therefore  if  a  c»urt  changed 
its  ruling,  and  held  a  class  of  contracts  to  be  invalid  which  had  previously 
been  considered  binding,  or  vice  versa,  there  could  be  no  relief  for  the  dis- 
appointment thus  brought  upon  the  contracting  parties.  A  new  statute 
could  make  provision  for  antecedent  contracts,  or  the  courts  could  dis- 
tinguish between  those  formed  before  it  was  passed  and  those  formed 
under  it ;  but  any  such  distinction  as  to  the  common  law  was  inconsistent 
with  the  accepted  theory.  That  injustice  might  sometimes  be  done,  and 
the  reasonable  expectations  of  parties  deceived  by  thus  holding,  was  recog- 
nized ;  but  it  was  recognized  as  one  of  the  inevitable  sacrifices  to  be  made 
for  the  benefit  of  a  consistent  and  logical  system  of  law.  Kulings  of  this 
kind  are  too  numerous  and  familiar  to  need  citation  here. 

But  it  is  evident  that  this  reasoning  does  not  apply,  if  the  law  enunci- 
ated by  the  judge  must  be  regarded  as  made  by  him.  It  follows  necessarily 
that  a  change  of  opinion  in  the  tribunals  is  a  change  of  the  law,  and  that 
parties  who  find  themselves  affected  by  it  must  have  the  same  right  to 
claim  the  law  under  which  they  contracted,  as  if  the  change  had  been 
brought  about  by  a  statute.  If  every  judge  is  really  a  legislator,  as  Mr. 
Austin  and  his  followers  assume,  we  must  enter  into  the  same  questions 


AITI.MMX.  '.')-J~ 

of  retroactive  decisions  and  vested  rights  that  were  already  familiar  to 
the  profession  in  the  field  of  written  law.  And  Bach  actually  has  been  the 
jurisprudence  of  the  Supreme  Court  of  the  United  States,  especially  upon 
ih-  much-litigated  question  of  the  validity  of  railroad  bonds. 

It  a  contract,  when  made,  was  valid  under  the  constitution  ami  laws  of 
a  state  as  they  had  been  previously  expounded  by  its  judicial  tribunals 
and  as  tiny  were  understood  at  the  time,  no  subsequent  action  by  the 
slature  or  the  judiciary  will  be  regarded  by  the  Supreme  Court  of  the 
United  States  as  establishing  its  invalidity.  Walker  v.  Whitehead,  16  Wall. 
3U ;  Olcott  v.  The  Supervisors,  etc.,  10  Wall.  G78. 

The  laws  which  exist  at  the  time  of  making  a  contract,  and  in  the  place 
where  it  is  made  and  to  be  performed,  enter  into  and  make  part  of  it. 
This  embraces  those  laws  alike  which  affect  its  validity,  construction,  dis- 
charge, and  enforcement.  Xo  distinction  is  made  by  the  court  between 
statute  and  common  law,  in  this  respect.     Ibid. 

In  Woodruff  v.  Woodruff,  and  same  v.  Robinson,  52  X.  Y.  Ct.  App.  53 
(1S73),  the  doctrine  is  recognized  that  "  a  subsequent  decision  is  a  legal 
adjudication  that  the  prior  one  was  not  the  law  at  the  time  it  was  mat 
(Applied  to  Knox  v.  Lee,  12  Wall.  457,  overruling  Hepburn  v.  Griswold,  8 
Wall.  003,  on  the  validity  of  the  Legal-Tender  Acts.)  But  it  was  held  that 
where,  pending  the  first  case,  a  contract  was  made  to  be  governed  by  its 
decision,  —  i.e.,  to  pay  gold  if  the  court  held  the  Legal-Tender  Act  uncon- 
stitutional,—  the  parties  would  be  held  to  it,  although  the  decision  was 
afterward  reversed. 

(Note,  however,  that  the  contract  in  this  case  was  to  pay  gold  "  if  such 
a  decision  was  made  and  became  the  law  of  the  land;''  and  the  court 
assume  that  the  parties  contracted  with  reference  particularly  to  the 
former  case  then  pending.  Their  reasoning  in  this  respect  seems  to  me 
not  entirely  satisfactory.) 

In  conclusion,  I  venture  to  say  —  although  a  note  like  this  is  not  the 
place  for  the  full  discussion  of  so  important  a  question  —  that  I  hold  the 
view  of  Blackstone  and  all  the  older  writers  upon  the  common  law  to  be 
the  true  one,  and  that  presented  by  Mr.  Austin  and  his  followers  to  be  a 
radical  mistake.  The  inconsistencies  and  errors  of  many  of  the  former 
statements  of  the  common-law  doctrine  are  freely  admitted;  but  they  are 
of  very  little  consequence  as  againsl  their  general  accord  and  consistence. 
The  belief  in  a  common  law,  of  which  all  precedents  and  decided  cases 
are  merely  the  evidence  and  exposition,  cannot  be  a  delusion  or  a  fiction, 


328  APPENDIX. 

so  long  maintained.  Unless  we  are  willing  to  surrender  entirely  the  belief 
that  there  is  a  Divine  order  in  the  moral  as  well  as  physical  constitution 
of  this  world,  we  cannot  assume  that  all  the  principles  upon  which  cases 
of  the  first  impression  have  been  decided  for  centuries  were  the  creation 
of  the  judges  who  wrote  or  uttered  the  particular  opinions.  Nor  can  we 
say  that  our  English  and  American  judges  have  made  the  law  which 
they  expounded,  unless  we  are  willing  to  admit  that  the  whole  course  of 
their  jurisprudence  for  at  least  six  centuries  has  been  an  unjust  govern- 
ment of  litigants  by  rules  that  did  not  exist  when  they  entered  into  the 
transactions  adjudged.  The  new  view,  that  they  were  really  making  law 
while  they  professed  only  to  expound  it,  seems  to  me  to  rest  entirely  upon 
the  assumption  that  all  law  must  necessarily  be  legislation,  —  a  rule  or 
rules  promulgated  beforehand  in  writing,  by  some  earthly  sovereign 
whom  the  people  are  bound  to  obey.  The  old  doctrine  rested  on  the 
assumption  that  there  were  fixed  principles  of  jural  as  well  as  moral  right, 
which  every  man  was  bound  to  obey,  and  which  every  magistrate  was 
bound  to  recognize  and  enforce  to  the  best  of  his  knowledge  and  ability. 

The  mistake  made  by  the  older  advocates  of  this  view  was  merely  in 
taking  for  granted  that  these  principles  were  perfectly  known  to  them, 
and  that  the  law  of  reason,  of  nature,  or  of  God,  as  they  understood  it 
and  could  formulate  it  in  words,  was  the  standard  of  jus  for  all  time. 
They  overlooked  the  fact  that  our  notions  of  nature  and  natural  law  de- 
pend upon  our  knowledge  and  education  in  moral  as  well  as  physical 
science. 

(Dean  Swift,  who,  though  not  a  lawyer,  was  a  man  of  wonderful  insight, 
and  familiar,  too,  with  all  the  moral  and  political  science  of  his  day,  — 
probably  also  knowing  more  of  the  true  science  of  law,  as  distinct  from 
its  technicalities,  than  a  majority  of  the  contemporary  practitioners  of  the 
art,  —  in  his  satirical  essay  on  the  "  Right  of  Precedence  between  Physicians 
and  Civilians,"  has,  in  a  mere  passing  remark,  shown  the  identity  of  nat- 
ural and  customary  law,  or  the  fact  that  what  is  customary  is  what  will  be 
regarded  as  natural,  more  effectively  than  many  labored  disquisitions : 
"For  that  I  take  to  be  the  meaning  of  nature  in  most  cases,  viz.,  what  is 
found  reasonable  in  itself,  and  has  been  always  agreed  to  by  mankind,  and 
is  confirmed  by  constant  and  uninterrupted  practice.")  Works,  XII.,  p. 
46  (New  York,  1812,  12mo). 

We  can  improve  upon  the  fathers  of  the  common  law,  not  by  rejecting 
their  belief  in  the  existence  of  such  a  law,  but  by  recognizing  the  fact 


APPENDIX. 


329 


that  it  must  be  learned,  like  the  laws  of  the  physical  world,  inductively. 
The  decided  cases  of  the  past  are  so  many  observations  upon  the  practical 
working  of  these  laws,  from  which  the  true  theory  is  to  be  inferred,  — pre- 
cisely as  the  astronomer  infers  the  true  form  of  the  planet's  orbit  from 
his  observations  of  its  position  at  many  different  times.  The  observed 
facts  arc  authoritative:  our  inferences  from  them  are  theory;  but  it  is  the 
formation  of  that  theory  which  enables  us  to  carry  our  observations  on 
farther  and  more  intelligently,  and  thus  to  arrive  gradually  at  the  true  un- 
derstanding of  the  laws  that  govern  the  moral  as  well  as  those  that  govern 
the  material  universe. 

This  explanation  of  the  true  office  of  precedents,  as  data  from  which  we 
may  obtain  by  induction  the  jural  rule  which  they  prove  to  exist,  is  not 
only  the  most  reasonable  in  itself,  but  it  has  been  recognized  by  high  judi- 
cial authority. 

In  Bates  v.  Relyea  &  Wright,  23  Wend.  336  (1840),  Cowen,  J.,  discusses 
a  question  of  the  interpretation  of  a  statute  (Stat.  N.  Y.  1831,  p.  403,  §  33), 
and  bases  the  decision  upon  a  former  case,  — Clark  v.  Lee,  15  Wend.  479,  — 
in  spite  of  dicta  to  the  contrary  in  Ackerman  v.  Welch,  15  Wend.  652.  It 
is  evident  that  he  bases  his  present  decision  rather  on  the  rule  of  stare 
decisis  than  upon  original  reasoning,  (p.  340,  at  foot.)  He  then  goes 
on:  "The  decisions  of  this  court,  [New  York  Supreme  Court]  while 
unreversed,  always  formed  the  absolute  law  of  the  case,  and  entered  with 
very  decisive  effect  into  the  body  of  precedents.  They  must,  from  the  nature 
of  our  legal  system,  be  the  same  to  the  science  of  law  as  a  convincing  series  of 
experiments  is  in  any  other  branch  of  inductive  philosophy .  They  are,  on 
being  promulgated,  immediately  relied  upon,  according  to  their  character, 
either  as  confirming  an  old  or  forming  a  new  principle  of  action,  which 
perhaps  is  at  once  applied  to  thousands  of  cases.  These  are  continually 
multiplying  throughout  the  whole  of  our  jurisdiction.  *  *  *  The  court 
almost  always,  in  deciding  any  question,  creates  a  moral  power  above 
itself;  and  when  the  decision  construes  a  statute,  it  is  legally  bound,  for 
certain  purposes,  to  follow  it  as  a  decree  emanating  from  a  paramount 
authority." 

We  may  properly  search  in  history  for  the  first  recognition  and  growth 
of  each  rule,  doctrine,  or  institution  of  the  common  law;  but  it  is  a  mis- 
take to  look  there  for  the  origin  of  the  common  law  itself,  because  we 
cannot  get  back  to  a  period  when  society  existed  at  all  and  yet  existed 
without  it.     To  imagine  such  a  period  is  as  great  a  mistake  as  that  made 


330  APPENDIX. 

a  century  or  more  ago,  in  assuming  a  state  (and  law)  of  nature  before 
society  was  formed.  The  base  of  the  common  law  (as  of  a  common  law) 
is  found  in  man's  nature.  When  the  question,  "Is  it  right  to  do  so  and 
so?"  can  be  asked,  the  answer  implies  a  law.  Every  individual's  reflec- 
tion upon  his  own  proposed  action,  every  conscious  purpose,  implies  a 
law.  When  such  a  question  arises  between  two  persons,  there  is  no  need 
of  an  arbiter  to  lay  down  the  law.  They  cannot  discuss  or  dispute,  upon 
any  ground  above  brute  force,  without  assuming  that  there  is  a  law  to 
decide  between  them.  The  various  methods  of  determining  what  the  law 
is  —  precedent,  custom,  equity,  legislation,  etc.  —  are  all  afterthoughts. 

It  would  be  easy  to  show,  if  space  permitted,  that  the  common-law  doc- 
trine of  precedent  has  always  been  recognized  by  the  highest  authorities 
upon  the  subject  in  other  lands.  The  use  of  reported  cases  is  well  known 
in  the  civil-law  countries,  although  they  have  not  had  the  relative  impor- 
tance there  which  they  have  enjoyed  in  England.  Of  late  years  they  seem 
to  have  gained  in  popularity,  and  the  number  of  the  reported  decisions  of 
French,  German,  Italian,  and  other  courts  now  published  in  regular  series 
is  very  great.  It  is  remarkable  too  that  the  German  jurists,  who  have 
heretofore  disregarded  them  entirely  in  the  profuse  citations  appended 
to  their  works,  are  now  beginning  to  quote  them  and  reason  from  them 
very  much  in  the  English  manner.  The  notes  to  the  Pandects  of  Prof. 
Windscheid,  the  distinguished  successor  of  Vangerow  at  Berlin,  are  full 
of  references  to  Seuffert's  "  Archiv  fur  Entscheidungen  der  obersten  Ger- 
ichte  in  den  deutschen  Staaten,"  an  admirable  publication,  now  in  its 
thirty-fifth  volume,  which  gives  in  a  single  yearly  volume  of  four  numbers 
a  clear  and  methodical  summary  of  the  most  important  decisions  made  in 
its  wide  field.  It  were  much  to  be  wished  that  among  our  many  American 
periodicals  that  fill  their  pages  with  a  repetition  of  the  same  recent  cases, 
or  with  interminable  collections  of  head-notes,  —  miscalled  digests  of  re- 
cent decisions,  —  there  were  one  edited  upon  the  same  plan,  and  with  the 
same  learning  and  discrimination. 

An  acute  discussion  of  the  theory  of  precedent  will  be  found  in  the  little 
treatise  of  Dupin,  De  la  Jurisprudence  des  Arrets,  forming  a  part  of  his 
Manuel  des  Etudians  en  Droit,  et  des  jeunes  Avocats.  (Bruxelles,  1825.) 
ArrSt  is  the  French  term  for  a  legal  precedent  or  reported  case  of  a  court 
of  ultimate  jurisdiction.  "Know  ye  that  from  an  Arret  of  Parliament 
[the  highest  French  court  of  that  time]  there  can  be  no  appeal ;  and  there- 
fore it  is  called  arret  because  it  arrests,  and  puts  an  end  to  the  contro- 


appendix.  ;;;;i 

versy."  Boutciller,  Sorarae  rurale,  tit.  21,  p.  93.  Bouteiller  wrote  iu 
the  fourteenth  century,  ;it  a  time  when  the  theory  of  French  law  was 
almost  identical  with  that  of  England,  except  that  the  latter  country  had 
already  thrown  off  the  yoke  of  the  Roman  law,  which  for  a  century  or  more 
had  been  as  inurh  fell  there  as  in  the  neighboring  part  of  the  continent. 

A  very  interesting  account  of  the  older  European  reports,  and  particularly 
of  those  of  the  Rota  Bomana,  the  Papal  Court  of  Appeals,  which  exercised 
a  wide  jurisdiction  and  immense  influence  on  the  law,  will  be  found  in  the 
prefaces  to  Hoepfner's  edition  of  Mevii  Decisiones  (Trancofurti,  17(J1). 
One  of  these  prefaces,  by  J.  II.  Bohmcr,  is  printed  also  in  the  first  volume  of 
that  author's  Exercitationes  ad  Pandectas,  pp.  U&7-735,  ed.  Ilanov,    1745. 


NOTE     O. 

THE   CASE   OF   STRADLING  v.  STYLES. 

The  report  of  the  famous  case  of  Stradling  v.  Styles,  referred  to  by  Dr. 
Lieber  at  page  7G  of  the  text  (the  defendant's  name  being  there  misprinted 
Swale),  is  undoubtedly  the  most  famous,  and  perhaps  the  wittiest  of  the 
many  parodies  of  legal  cases.  But  its  wit  is  too  purely  professional  to  be 
generally  relished.  The  imitation  of  the  ancient  law-French  reporters 
would  hardly  be  understood,  excellent  as  it  is,  by  a  generation  that  n  sver 
reads  them.  In  the  author's  solution  of  the  question,  he  seems  to  assume 
that  it  was  written  in  English;  since  otherwise  his  comments  on  the  mere 
collocation  of  the  words  would  hardly  have  a  meaning.  But  the  report 
itself  is  in  the  jargon  of  the  early  reporters. 

It  appeared  originally  as  a  fragment  of  that  proposed  satire  upon 
pedantry,  the  Memoirs  of  Martinus  Seriblerus,  and  may  be  found  in 
Pope's  Prose  Writings.  (Pope's  Complete  Works,  Vol.  V.,  pp.  307-311 ; 
London,  8  vols.,  1847.)  Pope,  Swift,  ami  Arbuthnot  were  the  chief  crea- 
tors of  Seriblerus;  but  this  particular  jeu  d? esprit  has  been  attributed  to 
Mr.  Justice  (afterward  Lord)  Fortescue. 

It  has  been  supposed  that  the  first  suggestion  for  Stradling  v.  Styles 
was  found  in  the  following  real  case,  and  the  resemblance  is  certainly 
curious :  — 

"Hammond  v.  Oudf.n,  12  Modern,  421;  B.  R.  12  Win.  III. 

"Action  on  the  case.  The  plaintiff  declared  that,  in  consideration  of 
seventy  pounds  paid    by  him   to  the  defendant,   the  defendant  super    de 


332  APPENDIX. 

assumpsit  to  deliver  to  the  plaintiff,  on  or  before  the  eighteenth  day  of 
January  following,  on  board  the  plaintiff's  ship,  in  such  a  place,  twenty- 
five  quarters  of  oatmeal,  and  six  hair  and  splitted  sieves.  The  plaintiff 
alleged  that  he  did  bring  his  ship,  on  the  said  eighteenth  of  January,  to 
the  said  place,  and  that  the  defendant  did  not  deliver  to  him,  etc.  Verdict 
and  damages  for  the  plaintiff. 

"Cowper  took  exceptions  to  the  declaration.  First,  that  it  was  alto- 
gether uncertain,  so  that  a  jury  could  not  assess  damages  upon  it;  for  it 
did  not  appear  how  many  of  the  sieves  were  to  be  hair  and  how  many 
splitted.     *     *     * 

"  But  per  Curiam:  As  to  the  first,  if  a  man  bind  himself  to  give  another 
six  cows  and  horses,  it  must  be  six  of  each,  and  it  shall  be  taken  severally 
as  strongest  against  the  grantor.  Besides,  here  it  is  laid,  'sex  scribas,' 
Anglice  hair  and  splitted  sieves;  and  we  cannot  take  notice  but  a  hair 
sieve  and  a  splitted  one  are  the  same." 

[I  omit  the  second  ground  of  exception  and  decision,  which  is  much 
longer,  and  turns  on  a  commonplace  question  of  pleading.] 

Mr.  F.  F.  Heard,  in  that  amusing  little  work  "  The  Curiosities  of  the 
Law-Reporters,"  p.  70,  refers  to  White  v.  Brough,  1  Roll.  286,  as  deserv- 
ing a  place  beside  Stradling  v.  Styles.  It  certainly  deserves  notice  as  a 
specimen  of  ingenious  misinterpretation. 

"If  one  man  says  to  another,  'Thou  hast  stolen  me  (innuendo,  the 
defendant)  an  hundred  of  slate,'  no  action  lies,  because  the  innuendo 
has  made  the  words  repugnant ;  for  he  could  not  steal  the  defendant,  as  it 
must  be  taken  by  the  words."  So,  in  the  next  case  to  this,  quoted  in  1 
Vin.  500,  it  was  said  not  to  be  slander  to  accuse  a  man  of  having  put  to 
death  four  or  five  of  his  own  children,  because  he  might  have  executed 
them  as  a  minister  of  justice !     Keymer  v.  Clark,  Latch,  159. 


NOTE     P. 

THE   CASE   OF   SIBYL   BELKNAP. 

Very  few  cases  from  the  Year  Books  have  been  mentioned  so  often  of 

late  years  as  this ;  and  the  rhyming  distich  of  Chief  Justice  Markham  is 

probably  better  known  than  his  most  learned  judgments  upon  the  law,  of 

which  he  was  unquestionably  a  master.    But  I  quote  it  here,  less  for  its 


APPENDIX.  333 

intrinsic  interest  than  for  its  bearing  upon  the  question  how  far  the  Tear 
Books  can  be  depended  upon  as  authority  for  the  early  English  law.  This 
has  so  commonly  been  taken  for  granted, that  it  may  seem  presumptuous 
now  to  question  it. 

Most  of  our  recent  writers,  who  mention  the  Year  Books  at  all,  repeat 
the  story  that  they  were  edited  by  official  reporters,  whose  salary  for  that 
purpose  was  paid  from  the  public  treasury.  There  maybe  some  authority 
for  this  of  which  I  am  ignorant;  but  I  have  never  been  able  to  find  any 
mention  of  it,  or  any  thing  from  which  it  could  be  inferred,  of  an  earlier 
date  than  the  proposed  reestablishment  of  the  office  in  the  reign  of  James 
I.,  almost  a  hundred  years  later  than  the  date  of  the  latest  Year  Book. 
These  "books,"  as  they  were  long  called  by  such  writers  as  Coke  and  his 
followers,  have  an  importance  in  the  history  of  our  law  that  would  repay 
the  most  careful  investigation  of  their  authorship ;  and  it  is  not  creditable 
to  our  profession  that  no  effort  has  yet  been  made  to  ascertain  the  exact 
amount  of  reliance  that  can  be  placed  on  their  statements. 

An  examination  of  this  particular  case  is  certainly  not  encouraging  to 
those  who  would  regard  them  as  official  oracles  of  the  common  law  in  its 
most  important  period.  It  is  a  little  remarkable  that  we  can  trace  all  the 
modern  versions  of  the  story  to  a  book  written  by  a  lord  chancellor  of 
England,  and  from  him  to  the  speech  of  a  lord  chancellor  more  than  two 
centuries  earlier,  and  from  him  again  two  centuries  to  a  dictum  of  the 
same  court  that  first  made  the  decision,  just  one  year  after  it  was  made, 
and  yet  find  that  the  original  case  has  been  for  four  hundred  and  seventy- 
five  years  entirely  misstated,  and  that  even  the  parties  in  it  have  been  ex- 
actly transposed,  and  that  there  never  was  "a  woman  who  brought  the 
king's  writ,  not  naming  her  husband,  joined  by  the  oak  of  the  law  "  !  (Did 
this  robove  legis  have  any  thing  to  do  with  Blackstone's  stick  no  larger 
than  the  husband's  thumb?) 

Lord  Campbell,  in  his  Life  of  Robert  Belknappe,  chief  justice  under 
Richard  II.,  says  that  his  wife  Sibbella  held  certain  estates  in  her  own 
right;  and  bringing  an  action  during  his  banishment,  for  an  injury  done  to 
one  of  them,  the  question  arose  Avhether  she  could  sue  alone,  being  a 
married  woman.  But  it  was  adjudged  that,  her  husband  being  disqualified 
to  join  as  a  plaintiff,  she  was  entitled  to  the  privilege  of  suing  as  a  feme 
sole;  although  Chief  Justice  Markham  exclaimed, — 

"  Ecce  modo  mirum,  quod  fcmina  fert  breve  regis, 
Non  nominando  virum  conjuncturo  robore  legis." 
(Lives  of  the   Chief  Justices,  I.,  p.  11G.     The  story  is   also   referred 


334  APPENDIX. 

to  in  a  note  to  the  life  of  Lord  Kenyon,  Vol.  IV.,  p.  52.)  Lord  Camp- 
bell refers  to,  and  evidently  follows,  the  account  of  the  same  matter 
given  by  Lord  Ellesmere  in  the  case  of  the  Postnati,  2  Howell's  State 
Trials,  pp.  559,  677,  and  criticises  the  older  chancellor's  statement  that 
the  banishment  was  into  Gascony,  —  showing  that  it  was  really  into  Ire- 
land. But  Ellesmere  followed  directly  in  this  the  authority  that  he  cites, 
Mich.,  2  Hen.  IV.,  7,  quoted  below.  The  strangest  part  of  the  whole  is 
that  this  latter  account,  printed  in  the  same  book,  and  within  six  pages  of 
the  original  authority,  should  so  entirely  misstate  the  original  case  in  the 
most  important  point.  This  will  be  better  seen  by  a  literal  translation  of 
the  two  passages. 

"  Y.  B.  Mich.,  lo  Hen.  IV.,  fo.  1,  pi.  2.  Our  Lord  the  King  brings  a  writ 
of  ward  against  Sybell  Belknap,  and  the  writ  brought  by  the  King  was 
awarded  good.  Cokeine.  Judgment  of  the  writ,  since  she  was  covert 
when  the  writ  was  purchased,  etc.  Skrene.  Your  husband,  for  a  crime 
which  he  committed  against  the  King  and  divers  of  his  peers,  was  ban- 
ished to  Gascony,  to  remain  there  until  pardoned  by  the  King.  Wherefore 
Gascoigne,  ex  assensu  sociorum,  said  to  the  defendant,  answer:  and 
thereupon  she  pleads  in  bar." 

But  the  jrear  after,  in  a  case  where  a  monk  was  plaintiff  (Mich.,  2°  Hen. 
IV.,  fo.  7,  pi.  26),  this  case  was  mentioned  in  the  following  words :  "And 
it  was  there  testified  by  the  justices  that  the  wife  of  Sir  Robert  Belknap, 
who  was  exiled,  sued  a  writ  alone,  her  husband  not  being  named  in  the 
writ.  And  by  their  award  the  suit  was  held  sufficient,  because  her  husband 
was  attainted  in  law."  (Markham  then  breaks  out  into  the  rhyming 
dictum  above  quoted,  which  the  reporter  prints  as  cold  prose!)  "And 
other  judges  said  that  the  reason  was  because  she  was  the  king's  farmer." 

We  might  suspect  that  this  later  dictum  stated  the  case  correctly,  and 
that  the  mistake  was  in  the  earlier  report,  if  we  did  not  find  a  reference 
from  that  report  to  a  still  earlier  case,  in  which  the  wife  was  also  defendant, 
and  not  plaintiff  as  the  modern  story  takes  for  granted. 

"  Y.  B.  Mich.,  10  Ed.  III.,  pi.  37,  fo.  53.  The  King  brought  Quare  impedit 
against  Dame  de  Maltravers ;  and  she  pleaded  that  she  was  covert,  and 
demanded  judgment  of  the  writ.  Parnell.  Her  husband  is  in  exile  for 
certain  reasons ;  and  we  demand  judgment  whether  our  writ  is  not  good. 
Ston.  The  King  favors  you  greatly  in  bringing  a  writ  against  you."  And 
the  reporter  then  adds :  — 

"  Quaere  de  ista  materia,  quia  nihil  dictum  fuit :  sed  opinio  fuit,  that  she 
should  answer"! 


INDEX. 


The  references  are  to  the  pages.    The  paging  of  the  Appendix  follows  that  of  tin 
text  consecutively. 


ADVOCATE, 

duties  of,  79,  80. 
ALBERT,  PRINCE  OF  PRUSSIA, 

makes  himself  Duke  of  Prussia,  134,  note. 
ALCIATUS, 

and  the  Glossators,  235. 
ALEXANDER, 

effect  of  precedent  on,  192. 
AMBIGUITY, 

rules  for  construing  ambiguous  words,  300  ct  seq. 
ANALOGY, 

a  means  of  interpretation,  237,  275,  et  seq. 

divisions  of,  by  Austin,  275,  276. 

examples  of,  in  civil  law,  277. 

effect  on  the  growth  of  law,  278. 
APPLICATION, 

difference  between,  and  interpretation,  246  ct  seq. 
ARNOLD,  DR.  THOMAS, 

quoted,  201,  and  note. 
AUSTIN, 

his  use  of  "sovereignty,"  251. 

criticism  of  maxim,  "  Cessante  ratione  legis,  cessat  ipsa  lex,"  281. 

Dn  constitutions,  308. 

on  precedents,  318,  319,  322,  323. 
AUSTRIA, 

Code  of,  34,  115. 

AUTHENTIC  INTERPRETATION, 
English  view  of,  36. 
history  of,  252  et  seq. 

(335) 


336  INDEX. 

AUTHENTIC  INTERPRETATION  —  Continued, 
its  rise  in  France,  255. 
in  the  United  States  Supreme  Court,  258,  259. 

AUTHORITIES, 

relation  to  precedents,  213. 

denned,  213. 

why  we  should  submit  to,  215. 

experience  essential  element  of,  216. 

mode  of  historic  criticism  of,  216  et  seq. 

classical  periods  of,  important,  219. 

credit  of,  218. 

Lord  Coke,  Bacon,  and  Hale  as  authorities,  223. 

laws  are,  225. 

must  be  taken  with  all  their  adjuncts,  226. 

latest  should  be  best,  226. 

extent  of,  important,  227. 

their  weight,  312  et  seq. 

distinguished  from  precedents,  317. 

AZO, 

his  work  on  "Interpretatio,"  235. 

BACON,  LORD, 

quoted,  127. 

praises  Coke's  Reports,  272. 

BAVARIA, 

Code  of,  31. 

BECK,  JUSTICE, 

remarks  in  "  Stewart  v.  Supervisors  of  Polk  County,"  311. 

BELKNAP,  SIBYL, 

case  of,  332  et  seq. 

BENTHAM,  JEREMY, 

his  idea  of  human  language,  35,  116,  note. 

BENTINCK,  LORD, 

order  of,  101,  note. 

BETIS, 

192. 

BIBLE, 

interpretation  of,  64. 

BIBLIOGRAPHY, 

of  interpretation,  229  et  seq,  306,  307. 

BIENER, 

his  distinction  of  law  and  fact,  285. 

BILL  OF  RIGHTS, 

influence  of,  in  formation  of  Constitution  of  United  States,  221. 


INDEX.  337 

BLACKSTONE,  SIR  WILLIAM, 
defines  construction,  125. 

on  the  nature  of  precedents,  320. 
BRACTON, 

his  rejection  of  the  subject  of  interpretation   ">37 
BROUGHAM,  LORD, 

68,  note,  71),  note. 
BRUNS, 

bis  exposition  of  present  theory  of  interpretation   243 
BULLER,  '  "     " 

as  authority,  218. 
CAMPBELL,  LORD, 

againsl  prolixity  of  bills,  etc.,  21,  note. 
CAVAIGNAC,  GENERAL, 

reference  to,  73. 

CHARLES  I., 

authority  of  Commons  in  the  struggle  with   184 
ruined,  1SS.  ' 

CHATHAM. 

67,  note. 
CHINA, 

Code  of,  48;  ambiguity  of  law  of,  156. 
CHRISTIAN, 

extent  of  term,  97. 
CICERO, 

quoted,  144. 
ethical  rule  of,  81,  note. 
CODES, 

furnish  material  for  reflection,  153. 
COKE,  LORD, 

holds  law  void  that  is  contrary  to  reason,  1G0 
on  kingly  precedents,  188. 
petition  drawn  by,  203. 
maxim  of,  208  and  note, 
decides  Edward  IV.  acts  as  no  precedent,  211 
boasts  of  the  Star-Chamber,  223. 
COLIGNI,  ADMIRAL, 

price  set  upon  his  head,  212,  note. 
COMMANDS, 

interpretation  of,  150. 
COMMENTARIES, 
prohibited,  30. 

22 


338  INDEX. 

COMMON  LAW, 

its  source  and  repository,  320  et  seq. 

COMMON  SENSE, 

in  interpretation,  19,  22,  53,  77. 

COMMONS,  HOUSE  OF, 

independence  of  speaker  of,  177. 

effects  of  precedents  in  struggle  with  king,  184. 

COMPACTS, 

how  construed,  121. 

CONCORDAT, 

of  Napoleon,  73. 
CONGRESS  AT  PHILADELPHIA, 

virtue  of,  188. 
CONJECTURE, 

relation  to  interpretation,  10. 

CONSTITUTIONS, 
defined,  165. 
kinds  of,  167  et  seq. 

interpretation  and  construction  of,  169  et  seq. 
should  be  closely  construed,  174. 
will  leave  some  cases  doubtful,  194. 
construction  of  written  constitutions,  305  et  seq. 
relation  of  written  to  unwritten  constitutions,  308  et  seq. 

CONSTRUCTION, 

defined,  44,  49. 

in  politics,  44. 

cannot  be  arbitrary,  45. 

proper  principles  of,  46. 

danger  of,  53. 

kinds  of,  65. 

unavoidable,  110. 

construction  and  intepretation  defined,  111,  note. 

rules  of  interpretation  valid  in,  114. 

analogy  main  guide  in,  114. 

of  privileges,  120,  note. 

compacts,  121. 

guides  iu,  124. 

defined  by  Blackstone,  Puffendorf,  125,  note. 

extensive  construction,  when  used,  125. 

close  construction  safest,  129. 

extravagant  construction  justified,  129. 

good  faith  necessary  to,  130. 

of  use  of  word  by  utterer,  133. 

between  powerful  and  weak,  134. 

superior  not  defeated  by  inferior  object,  135. 


INDEX.  330 

CONSTRUCTION  — Continued. 

genera]  rules  of,  136. 

application  of  rules  of,  138. 

of  words  implying  injury  of  person,  141,  note. 

ol  deeds,  wills,  and  contracts,  152,  nod-,  105. 

ol'  l.-iw -,  1 58  >•!  seq. 

ol  consl  itutions,  169,  l  75. 

laws  musl  harmonize  with  public  welfare,  173. 

comparative   construction   of    wills,   contracts,   law,  constitution, 
L76,  l".>'.»,  et  seq. 
CONTBAf  IT, 

interpretation  of,  115,  note. 

construction  of,  t52. 

rules  for  construing  words  of,  299  et  seq. 

CONVERSATION, 

interpretation  of,  139. 

COTTON,  SIR  ROBERT, 

the  antiquarian  —  arrest  of,  195. 

CRIMINAL  LAW, 

interpretation  of,  293  et  seq. 

doctrine  of  United  States  courts  on  interpretation  of,  297. 

CUJAS, 

quoted,  47,  note,  238. 

CUSTOMS, 

are  precedents,  196. 

their  relation  to  law,  313  et  seq.,  318. 

DANBY,  EARL, 

impeachment  of,  184. 

DANES, 

attitude  of,  toward  hereditary  rights  of  king,  174  and  note. 

DEEDS, 

construction  of,  152,  note. 

DEFINITIONS, 

tluir  importance  in  law,  303. 

the  requisites  of  a  good  definition,  303. 

DIRECTIONS, 

interpretation  of,  150. 

DIX,  GENERAL  JOHN  A., 

famous  order  of,  86,  note. 

DUPIN, 

his  theory  of  precedents,  330. 

DURHAM,  EARL, 

Governor-General  of  Canada,  68,  note. 


340  IKDEX. 

EDWARD    IV., 

211. 
ELIZABETH,  QUEEN, 

selects  her  successor,  138. 

effects  of  her  popularity,  180. 
ELLENBOROUGH,  LORD, 

his  conclusions  upon  the  force  of  precedents,  814. 

ENGLAND, 

civil  liberty  of,  due  to  close  construction,  129. 

ENGLISH   LAWS, 

language  of,  21. 
EQUITABLE   INTERPRETATION, 

true  meaning  of  the  phrase  as  derived  from  its  origin  and  history, 
283  et  seq. 

Blackstone's  view  of  it,  286. 

ERNEST   OF   HANOVER, 

annuls  constitution,  174. 

ERNESTI, 

cited,  60,  73,  102. 

EXECUTIVE, 

precedents  of,  dangerous,  199. 

EXEGESIS, 

derivation  and  definition  of,  52. 

EXPERIENCE, 

is  accumulated  precedents,  186. 
an  important  authority,  224. 

FAMILY, 

definition  of,  107,  note. 

EOSTER, 

as  authority,  218. 

ERANCE, 

unsteady  construction  of  her  fundamental  laws,  179. 

FRANCISCANS, 

reference  to,  57,  note. 

FREDERICK   THE   GREAT, 
his  idea  of  law,  30. 
effects  of  his  personal  popularity,  180. 

«  G  ALIGN  ANI," 

quoted,  37,  note. 

GENERIC   WORDS, 

construction  of,  130. 

GIRARD,  STEPHEN, 
will  of,  95,  100. 


INDEX.  341 

GLOSSATORS, 

their  understanding  of  interpretation,  235,  239,  et  seq. 

their  view  of  authentic  interpretation,  251. 
GODOY, 

GOOD    FAITH, 

in  interpretation  defined,  80. 

de\  iating  from,  causes  great  calamities,  100. 
GOSSIP, 

evil  effects  of,  130  and  note. 

GOVERNMENT, 

object  of,  175. 

absolute  —  tendency  to  destroy  civil  liberty,  179. 

peculiarities  of,  220. 

benefits  of,  221. 

GRANT,  U.  S., 

speech  at  Des  Moines,  74,  note. 
GREENLEAE,  PROF., 

quotation  from,  as  to  authorities,  218. 
GREGORY  XIII.,  POPE, 

corrects  calendar,  191. 
GROTIUS, 

quotation  from,  88. 
HALL, 

as  authority,  218. 

HAMILTON,  MR.    GERALD, 

parliamentary  rule  of,  206. 

HAMILTON,  SIR   WILLIAM, 
quoted,  etc.,  14,  note, 

HAMMOND  v    OUDEN, 

case  of,  quoted,  331,  332. 

HAMPDEN, 
221. 

HANSARD, 

parliamentary  debate,  quoted,  68,  note. 
HARDWICKE,  LORD, 

on  laws  as  to  publication  of  private  letters,  144,  note. 
HENRY   VIII., 

law  during  his  reign,  171. 

HERMENEUTICS, 

derivation  of  term,  52. 
legal,  245. 


342  index. 

HOBART,  LORD    CHIEF   JUSTICE, 

holds  acts  of  parliament  void,  160. 

as  authority,  218. 
HOLT,  LORD   CHIEF  JUSTICE, 

10G. 

upholds  Lord  Coke,  160. 

as  authority,  21S. 

HONESTY, 

necessary  in  interpretation,  77. 

IDEAS, 

expression  of,  a  sign,  1. 

IHERING, 

treatise  on  "  Interpretation'  262  et  seq. 

INDIVIDUALITY, 

connected  with  morality,  4. 

INTERPRETATIO, 

meaning  aud  history  of  the  term  among  Roman  jurists,  260. 

INTERPRETATION, 

species  of,  5i  et  seq. 

necessity  of,  when  there  are  religious,  moral,  or  political  codes,  con- 
tracts, etc.,  29,  32. 
application  of  rules  of,  137,  289. 
of  laws,  158  et  seq. 
of  constitutions,  169  et  seq. 
definition  of,  11,  12. 
discovers  true  meaning  of  signs,  5. 
origin  of  word,  8,  note. 

distinction  between  interpretation,  construction,  conjecture,  9. 
how  to  safely  interpret,  9. 
extensive,  58. 

extravagant,  limited,  or  free,  59. 
predestined,  60,  78. 
authentic,  62,  231,  252,  et  seq. 
mistaken  use  of,  76. 
object  of,  77. 
baseness  of  wrong,  78. 
faithful,  88. 

must  use  extraneous  principles  in,  10' 
should  be  sacrificed  for  justice,  103. 
literal,  87,  88. 
special  rules,  106. 
elementary  principles  of,  108. 
of  no  avail,  111. 

close,  favorable  to  civil  liberty,  128. 
bibliography  of,  229  et  seq. 


INDEX.  s  343 

INTERPRETATION— Continued. 

divisions  of,  by  \  arious  authors,  233  et  seq. 

distinguished  from  application,  246  et  seq. 

equitable,  283  e1  seq. 

value  of  formal  rules  of,  2S9  et  seq. 

of  written  constitutions,  305  et  seq. 

ISIDORIAN    DECRETALS, 
papal  ordinances,  72. 

JAMES  I., 

faithless  interpretation  of  laws,  171. 
result  of  his  reign,  180. 
on  precedents,  207. 

JEFFRIES,  , 

as  authority,  218. 

JOURNALS,  PRIVATE, 

interpretation  of,  142  et  seq. 
excluded  as  evidence,  147. 

JUDGE, 

difference  between  politician  and,  200. 

JUSTICE, 

demands  of,  78. 
KEYMER  v.  CLARK, 

case  of,  quoted,  332. 

KNOWLES,  MR.  S., 
189. 

LANGUAGE, 

cannot  be  absolute,  16. 
object  of,  17. 

LAW, 

uncertainty  of,  30. 

not  to  be  administered  by  tho«e  who  make  them.  40. 

object  of,  154. 

construction  of,  155. 

difficulties  attending  interpretation  of,  156,  note. 

reasons  for  construction  and  interpretation  of,  157. 

rules  of  construction  and  interpretation  of,  158  et  seq. 

perversion  of,  77. 

knowledge  of  necessity  of,  essential,  116. 

cannot  be  construed  to  demand  impossible  things,  119. 

supremeMaw,  120. 

repeal  of,  126  and  note. 

declared  void  by  courts,  102,  160. 

impossibility  of  covering  all  cases,  194. 

details  in,  embarrass,  195. 


344  INDEX. 

LAW  —  Continued. 

importance  of  certainty  of,  195. 
imperfect,  avoided,  198. 
reason  superior  to,  208. 
authorities,  225. 

LAWYEES, 

necessity  of,  41,  note. 

duty  of,  to  clients  and  state,  79,  80. 

LEGAL  HERMENEUTICS, 

province  of,  245  et  seq. 
LEGISLATION    (AMERICAN), 

safeguard  for,  194,  note. 

LETTERS    (PRIVATE), 

disposal  of  contents  of,  143  and  note,  144. 
interpretation  and  construction  of,  145. 

LIBERTY, 

demands  compromise,  220. 

LIVINGSTONE,  EDWARD, 

on  interpretation  of  penal  laws,  35. 

LOAN  ASSOCIATION  v.  TOPEKA, 
case  of,  referred  to,  310. 

LOUIS  XIV., 

popularity  of,  180. 

LUTHER, 

advises  prelates  to  resort  to  revolution,  134  and  note, 
on  letter-thieves,  142. 
quoted,  CO. 

LYNDHURST,  LORD, 

his  distinction  between  authorities  and  precedents,  317. 

MAGNA  CHARTA, 

influence  of,  in  formation  of  United  States  Constitution,  221. 

MAINE,  H.  S.,  SIR, 

force  of  precedents,  319,  321,  323. 

MANSFIELD,  LORD, 

charge  to  a  jury,  128. 

overrules  wrong  precedents,  210. 

as  authority,  218. 

MANUEL,  MR,, 

expelled  from  French  Chamber  of  Deputies,  150. 

MARSHALL,  CHIEF  JUSTICE, 
224. 
as  authority,  218. 


INDEX.  34.J 

MARSHALL  —  Continued. 

his  views  on  "obiter  dicta,"  325. 

MATHEMATICS, 

language  of,  15,  note. 

MAXIMS, 

"Cessante  ratione  legis,  cessat  ipsa  lex;"  history  of,  280. 
Austin's  criticism  of,  281. 
Fearne's  comments  on,  282. 
"  Interpretatione  legum  moUiendae  sunt  potius  quara  asperandc," 

293. 
"In  pcenalibus  causis  benignius  interpretandum  est,"  293. 
"Nulla  poena  sine  lege,"  294. 

"In  criminalibus  non  est  argumentandum  a  pari  ultra  casum  a  lege 
deflnituni,"  i".1-. 
MAZARIX,  CARDINAL, 

outlawed  by  Parisian  government,  212,  note. 

MEANINGS, 

why  not  correctly  expressed,  2-i,  25,  27,  2S. 
true  meaning,  5,  7i,  100. 

MENOCHIUS, 

his  views  on  the  interpretation  of  criminal  law,  295. 

MILLER,  JUSTICE, 

his  remarks  in  "  Loan  Association  v.  Topeka,"  310. 

MITTERMAIER, 

his  statement  of  doctrine  of  interpretation  of  criminal  law,  29G. 

MOHL,  VON, 

on  constitutions,  309. 

MONTKSf^riEU, 

as  to  changing  laws,  207. 

MORALITY, 

connected  with  man's  individuality,  4. 

MORALS, 

advance  of,  82,  note,  and  S3,  note. 
MOTIVES, 

interpretation  by,  unsafe,  102,  118. 

MULLER,  MAX., 

theory  <>f  language,  2,  note, 
criticism  of  his  theory,  6,  note. 

NAPOLEON. 

his  idea  of  law,  30. 
his  model  orders,  151. 

NATION, 

various  uses  of  the  word,  92. 


346 


INDEX. 


NELSON,  LORD, 

saying  of,  188. 

NIEBUHE, 

quoted,  143  and  note. 
NOTES  (PRIVATE), 

property  of,  142  et  seq. 
NOY,  WILLIAM, 

criticism  of  his  work,  "The  Grounds  and  Maxims  of  the  English 
Law,"  154,  note. 

NUDUM  PACTUM, 

orginal  sense,  81,  note. 

OBITER  DICTA, 

their  force,  324,  325. 

ORDERS, 

interpretation  of,  150. 

PARDONING  POWER, 

construction  of,  180. 

PARKYNS,  SIR  W., 

trial  of,  105. 

PARLIAMENT, 

authority  of,  161,  note,  178. 

PEEL,  SIR  ROBERT, 
quoted,  19,  20. 

PERICLES, 

Athens'  faith  in  him,  180. 

PETITION   OF   RIGHTS, 

influence  in  the  formation  of  Constitution  of  United  States,  221. 
PHILLIPPE   DE   DREUX, 

(warrior),  57. 

PICKERING,  JOHN, 
lectures  of,  26. 

PITT,  WILLIAM, 

tact  of,  224. 

PLOWDEN, 

as  authority,  218. 

POLIGNAC,   PRINCE, 
report  of,  69. 

POLITICAL  ECONOMY, 
object  of,  103. 

POLITICS, 

importance  of,  fundamental  principles  in,  199. 


INDEX.  347 


POLLOCK,   SIR    FREDERICK, 

59. 
POLYTHEISM, 

effects  of,  mi  Grecian  sculpture,  221. 

POPE   GREGORY, 

anecdote  of,  86,  note. 

PREAMBLE    TO    LAWS, 
use  of,  1 1 7,  note. 

PRECEDENTS, 

(1. ■lined,    L82. 

effects  of,  upon  the  mind  and  action  of  men,  1S3,  1S5. 

experience  is,  186. 

old  laws,  186,  188. 

value  of  experience,  1S7. 

force  of,  lsu. 

essentia]  element  of  English  liberty,  191. 

distinction  between  legal  and  political,  192. 

customs  are,  196. 

effect  of  disregard  of,  196. 

should  have  force  of  law,  197. 

in  politics,  198. 

danger  of  executive,  200. 

standard  of,  in  law  and  politics,  202. 

doubtful,  203. 

if  not  authority,  they  demand  attention,  206. 

should  be  sound,  207. 

must  give  way  to  distinct  law,  207. 

reason  superior,  208. 

not  authoritative,  209. 

their  weight,  312  et  seq. 

their  requisites,  314  et  seq. 

distinguished  from  authorities,  317. 

PRESIDENT   OF   UNITED    STATES, 
his  constitutional  power,  172. 

PRP7H/EGES, 

construction  of,  120. 

PROCLAMATIONS, 

interpretation  of,  60. 

PROMISE, 

construction  of,  122. 

PROVINCIALISMS, 

90. 
PRUSSIA, 

prohibits  commentaries  on  Code,  32,  34. 

Code  of,  76,  116,  119,  120. 


348  INDEX. 

PUBLIC   WELFARE, 

discussed,  173. 
PUFFENDORF, 

illustrates  relation  of  superior  and  inferior  objects,  135. 

defines  construction,  125,  note. 
PUNS, 

are  literal  interpretation,  86,  note. 
RABELAIS    GARGANTUA, 

quotations  from,  58. 
RAILROADS, 

are  they  highways,  23,  note. 
RATIO   LEGIS, 

as  a  means  of  interpretation,  279  et  seq. 
REASON, 

sup2rior  to  law  and  precedent,  208. 
REVENUE   LAWS   OF   UNITED   STATES, 

their  interpretation,  93,  note. 
RIGHTS   AND    OBLIGATIONS, 

universal  knowledge  of,  essential,  197. 
ROMAN   LAW, 

as  to  authority  of  precedents,  210,  note. 

interpretatio  of,  260  et  seq. 
ROME, 

emperor  decides  doubtful  cases,  35,  47,  and  note 
ROMILLY,  SIR   S., 

proposes  to  abolish  certain  punishments,  189. 
RULES, 

value  of,  in  interpretation,  102,  289,  et  seq. 

distribution  of,  into  groups,  293. 

for  construing  contracts,  299  et  seq. 
RUSSELL,  LORD   JOHN, 

on  language  of  bills,  21,  note. 
RUTHERFORD, 

quoted,  68. 
SANDERS, 

as  authority,  218. 
SAVIGNY,  M.  DE, 

lectures  on  Frederick's  Code,  32. 
SCHARNHORST,  GENERAL, 

151. 
SEDGWICK, 

his  views  of  equitable  interpretation,  287,  288. 
SELDEN, 

comments  on  courts  of  chancery,  157,  note. 


INDEX.  S-41' 


SHUFFLING, 

political,  87. 

SIBYL   BELKNAP, 

case  of,  832  et  seq. 
SIDNEY,  ALGERNON, 

trial  of,  87. 
SIGNS, 

necessity  of,  1. 

kinds  of,  1,  2,  3. 

involuntary,  and  importance,  4. 

definition  of,  2. 

variety  of,  which  man  uses  which  imply  intention,  5. 

interpretation  of,  5. 

true  meaning  of,  5. 
SILENCE, 

a  sign,  7. 
SLANDER, 

interpretation  of,  75. 

edict  of  Star-Chamber,  249. 
SOUL   OF   MAN, 

inner  motions  known,  81,  note. 

SOVEREIGNTY, 

meaning  of  changing,  24. 

cornet  meaning  of  the  term,  250  et  seq. 
SPANISH    INQUISITION, 

reference  to,  87. 
SPEECH, 

causes  of  ambiguity  of,  13. 
SPEECHES, 

interpretation,  158  et  seq. 
SPELLMAN,  SIR  II., 

quoted,  132,  note. 
SPINOLA, 

bad  faith  of,  S2. 
STAFFORD,   EARL, 

trial  of,  142. 

STAR-CHAMBER, 

history  of,  203  et  seq.,  and  note, 
its  edict  as  to  slander,  24'.L 
STATUTES, 

the  equity  of,  285. 

STEWART  v.   SUPERVISORS   OF   POLK   COUNTY, 
case  of,  referred  to,  307,  311. 


350 


INDEX. 


STORY,  CHIEF  JUSTICE, 

decision  of  "loaf-sugar"  case,  93. 
STOWELL,  LORD, 

as  authority,  218. 
STRADLING  v.   STYLES, 

76,  331. 
STUART,  MOSES, 

quoted,  11,  note. 

SUBJECTIVE  JUSTICE, 
39. 

SUPREME  COURT  OF  UNITED  STATES, 

its  authority  as  authentic  interpreter,  258. 

reply  of  the  justices  of,  to  President  Washington,  when  requested  by 
him  to  give  an  opinion  on  treaties  "with  France,  326. 
SYLVESTER,   SIR  J., 

189. 
TAUNTON,  MR.  JUSTICE, 

his  regard  for  precedents,  209. 
TECHNICAL  TERMS, 

demand  good  faith  in  their  interpretation,  99. 
TERMS, 

meaning  of,  27,  note,  115,  note. 
TEXT, 

definition  of,  12. 

must  be  genuine,  71. 
THIBAUT, 

his  essay  on  Logical  Interpretation  of  Roman  Law,  241. 
THURLOW, 

as  authority,  218. 
TILTON  v.  BEECHER, 

case  referred  to,  147,  note. 
TOOKE,  HORNE, 

quoted,  201. 
TREATIES, 

international,  construction  of,  180. 
TREVETT  v.  WEEDEN, 

case  of,  referred  to,  309. 
TROPES, 

interpretation  of,  99. 
TYRANNY, 

use  of  unfaithful  interpretation,  86. 
UNDERSTANDING, 

definition  of,  11. 


I.NDKX. 

UNITED  STATES  COURTS, 

declare  laws  void  as  against  the  Constitution,  1C2  and  note. 

their  authority  when  bo  speaking,  258. 

doctrine  of,  on  interpretation  of  criminal  law,  297. 

USURPERS, 

character  of,  173. 

IMS   LOQUENDI, 

90. 
UTTERANCE, 

is  necessary  to  man,  2. 

UTTERER, 

definition  of,  12. 

VATTEL, 

quoted,  82. 

VAUGHAN,  CIIIKF  JUSTICE, 

as  to  courts  of  equity,  157,  note. 

VETO, 

construction  of,  180. 

WASHINGTON, 

treaty  of,  48,  note. 

WEINSBERG, 

women  of,  84. 

WELLINGTON, 

perspicuity  of  his  military  orders,  151. 

WHITE  v.  BROUGIL 

ease  of,  quoted,  332. 
WHITNEY,  PROF.  W.  D., 

language  and  the  study  of  language,  G.  note. 

WILLS, 

construction  of,  152,  note. 

WILSON,  JUDGE, 

his  works  commended,  306. 

WORDS, 

formation  of,  14  and  note. 

become  restricted  to  specific  objects,  14,  89. 

may  have  ambiguous  signification,  22. 

use  of,  by  utterer,  133. 

whether  generic  or  expansive,  133. 

how  construed,  131  seq. 

undergo  changes,  139. 

that  are  vague  should  be  discarded,  141  and  note. 

definition  of,  10. 

true  sense  of,  varies,  10,  11. 


)ol 


352  INDEX. 

WORDS  —  Continued. 

how  taken,  89  and  note,  109. 

in  contracts,  299  et  seq. 
WRITING, 

does  not  include  printing,  94,  note. 
WULSON, 

author  of  heroic  science,  57. 


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